Assuming Section 84 of the Sheriffs and Civil Process Act, 2004, Was Validly Made by the Legislature596 views
By: Hameed Ajibola Jimoh Esq.
The issue of delay tactics undertaken by the government, the government’s agencies and the Central Bank of Nigeria to deny a judgment creditor the fruits of his judgment is well known in garnishee proceedings (even in fundamental rights cases) after a Court of law has given judgment in favour of the judgment creditor to such an extent that a number of judgements have remained unenforced by the judgment creditors entitled to the enforcement of the such judgment.
The tool used for such delay by the government, its agencies and the Central Bank of Nigeria, is the provisions of section 84 of the Sheriffs and Civil Process Act, 2004-herein referred to as the SCPA-, which requires ‘consent’ of the Attorney-General of the Federation or of the State as the case might be before the money in the custody of a public officer can be garnisheed (after a court of law has finally decided the case against the government or any of its agencies!).
These provisions of section 84 of the SCPA have been unjustly, inequitably and unfairly abused by the government and its agencies as well as the Central Bank of Nigeria to pay judgment sum/judgment debt and rather engage the Judgment Creditor in another battle in litigation even up to the Supreme Court of Nigeria for years if not even over ten (10) years! In my recently published legal article (online blogs) on the topic ‘SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT, 2004: INVALID AND UNCONSTITUTIONAL!’
I had submitted (among other submissions in the article) especially in the concluding part of the article that ‘the provisions of section 84 of the SCPA are invalid and unconstitutional and ought to be struck out of the Act by the Court, especially whenever the court has the opportunity to do so especially in a garnishee proceeding so that the courts would give effects to the enforcement of their (courts’) judgments and or decisions without subjecting same to the whims of the AGF or government’s agency who was a party in the case leading to the judgment since the entire provisions of section 84 of the SCPA is a total injustice to Nigerian citizens who have successfully won government or any of its agencies in court!’.
This current article is of the emphatic view that assuming that the said section 84 of the Sheriffs and Civil Process Act, 2004 was validly made by the legislature (i.e. the National Assembly) as at when it was made and or transplanted into the Sheriffs and Civil Process Act, 2004, I am still of the firm legal submission that the said section (not the entire Act at this point) still remains very unjust, draconian and discriminatory against democratic Nigerians! Hence, this topic.
First of all, I humbly submit that the said section 84 of the SCPA is very unjust and draconian, hence, it should be struck out of the Act! The ground for my submission is as follows. While the government and or any of its agencies would have judgments delivered against it to pay a democratic citizen of Nigeria some monetary compensations, section 84 of the SCPA still requires the said judgment creditor to approach the same government (after the court of law has delivered judgment in favour of the judgment creditor) to still seek the consent and or permission of the Attorney-General of the Federation or the State as the case might be(who is still an executive arm of the government)!
Reasonably, would such consent be granted?! I do not think so! The Attorney General is made like a demi-god or appellate authority to the judgment of the court of law (the last hope of the common man) is very unjust and undemocratic! Also, the government and its agencies do not pay any official money to the court to challenge or file their objection and or appeal against the garnishee suit or pay any money to court file any court process in court even up to the Supreme Court of Nigeria (various Rules of the various courts up to the Supreme Court’s Rules exclude government’s agencies from paying such official filing fee that every other litigant pays to the courts)! It is still this Judgment Creditor that continues to expend his monies to still prosecute and or enforce the judgment of the court of law held in his favour and including to defend the suits unjustly filed by the government, its agencies and the Central Bank of Nigeria! Is this unnecessary section 84 of the SCPA not unjust and draconian?! I answer in the affirmative!
Furthermore, I humbly submit that section 84 of the SCPA is discriminatory against democratic Nigerians and hence, it should be struck out of the Act either through legislative means or judicial means! The grounds for my submission are as follows. It is clear that what section 84 of the SCPA has done or is doing while it remains in the Act to democratic Nigerians is to give some legal enforcement rights to a judgment creditor through section 83 of the Act and to hold the said enforcement right inchoate and or at ransom through section 84 of the SCPA (thereby approbating and reprobating at the same time i.e. giving out the enforcement right by the right hand and taking away such right by the left hand)! Also, while section 83 of the SCPA is seen to be generally applicable to individual citizens as judgment debtors, section 84 of the SCPA has discriminatorily excluded the government’s funds from the said section 83 of the SCPA, after the judgment creditor must have won monetary judgments against the same government, the act which is very unjust and draconian!
For instance, Section 83(1) of the SCPA provides thus: ‘83. (1) The court may, upon the exparte application of any person who is entitled to the benefit of a judgement for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid. (Underlining is mine for emphasis).
Thereafter, section 84 of the SCPA went contrarily and discriminatorily to exclude the government’s funds from the enforcement right of the judgment creditor thus ‘84(1) – Where money liable to be attached in garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodial 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 a Court in the case of money in custodial legis, as the case may be.(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 service of the Federation, the Attorney-General of the Federation.’
Funnily, whereas, where the government or any of its agencies has a monetary judgment against a private citizen, the government would be free to apply section 83 of the SCPA against the said private person whereas the said private person cannot use section 83 of the SCPA against the government! I do not see how just the said section 84 of the SCPA is to democratic Nigerians in this way!
Furthermore, in a somehow justifying way, the Supreme Court of Nigeria (though I observed that the Supreme Court with due respect did not contemplate the evils of the said section 84 of the SCPA to the administration of justice, the court of law and the judgment creditors who are democratic Nigerians), the Supreme Court of Nigeria in the case of C. B. N. v Interstella Communication Ltd. (2018) 7 NWLR (Pt. 1618) 294, SC. On pages 344- 345, paras. H – A, has laid the principle underlying securing the AGF’s consent as prescribed in section 84 of the Sheriffs and Civil Process Act, Cap. S16 Laws of the Federation of Nigeria, 2004, to the effect that it is to avoid embarrassment on the AGF of not having the prior knowledge that funds earmarked for some purposes have been diverted in satisfaction of a judgment debt, which the government may not know anything about. If regard is to be made to this decision of the Supreme Court of Nigeria, this decision still shows clearly that it is unjust to continue to have section 84 of the SCPA in our law which aids the denial of justice to judgment creditors in a way that they are denied the fruits of judgments held in their favour by the court of law!
Finally, therefore, it is my humble submission that assuming that the said section 84 of the Sheriffs and Civil Process Act, 2004 was validly made by the legislature (i.e. the National Assembly) as at when it was made and or transplanted into the Sheriffs and Civil Process Act, 2004, I am still of the firm legal submission that the said section (not the entire Act at this point) still remains very unjust, draconian and discriminatory against democratic Nigerians! Hence, I humbly submit and recommend that the said section 84 of the SCPA should be struck out of the Act either through legislative means or judicial means in the interest of justice! More so, the effect of the provisions of the said section 84 of the SCPA has made government and or some of its agencies to remain adamant in not complying with Courts’ orders where same are made against the government, especially monetary judgments of courts by refusing to pay the judgment creditors!