-Seeks Direct Recognition Of Foreign Arbitration Award Without Any Court Process
The NBA Section of Public Interest and Development Law (NBA-SPIDEL) has called for a review of the Powers of the Attorney General(s) of States, and the Federation in the enforcement of court Judgments under the Sheriffs and Processes Act.
The call was made by the section of the Nigeria Bar Association in a communique issued by the Public Interest and Development Law Section after its annual conference held in Abuja between the 4th to 6th of August, 2022.
The conference noted that s.84 of the Sheriff Act requires an amendment to avoid any stumbling block in the enforcement process.
The body also called for direct enforcement of Foreign Arbitration Awards and their direct recognition by the Federal Government without any recourse to domestic courts.
COMMUNIQUE ON THE NIGERIAN BAR ASSOCIATION SECTION ON PUBLIC INTEREST AND DEVELOPMENT LAW (NBA-SPIDEL) 2022 ANNUAL CONFERENCE HELD AT NBA SECRETARIAT, ABUJA ON 4TH AND 5TH AUGUST, 2022
The Nigerian Bar Association Section on Public Interest and Development Law (NBA-SPIDEL) 2022 Annual Conference was held at the NBA Secretariat, Abuja on 4th and 5th August, 2022. The theme of the conference was “The Undermining of Judicial Authority in a Democracy.” The conference was attended by about 600 delegates comprising judges, legal practitioners, justice sector stakeholders and members of the diplomatic corps.
The conference was declared open by the Acting Honourable Chief Justice of Nigeria (CJN), Justice Olukayode Ariwoola while the Keynote Address was delivered by Justice John Inyang Okoro also of the Supreme Court of Nigeria.
The plenary sessions x-rayed several topics, namely Disobedience to court orders and the slide to a state of anarchy; Strengthening judicial authority in a democracy through effective and sustainable strategies; The impediments to seamless execution of court orders in Nigeria -Any way out?; Independent Investigative Panel (IIP) on human rights violation by defunct Anti-Robbery Squad (SARS) and other specialized units – the process, enforcement of the panels’ decisions/rulings, challenges, achievements and lessons learnt, and Disruptive approach to public safety and access to justice using technology.
Among the highlights of the conference were an Award to the NBA President, Mr. Olumide Akpata for his uncommon leadership and service to the Bar as well as the launch of a one-stop socio-legal App named JustEase. The App is designed as an avenue for effective citizen engagement, security intelligence, crime and rights violation tracking, as well as a digital evidence bank for the judiciary.
Coming on the heels of robust discussions by the speakers, panellists and participants, the following observations were made:
- The general principle of law is that all court orders and judgements must be obeyed. This is notwithstanding the opinion of parties.
- There are about 120 court orders against the Federal Government of Nigeria which are yet to be complied with by the government.
- Disobedience to court orders is a direct affront to the authority and dignity of the court.
- Some of the consequences of disobedience to court orders are a descent to anarchy and recourse to self-help, lack of confidence in the Judiciary, low level of foreign direct investment, and the absence of rule of law.
- Factors that contribute to disobedience to court orders include abuse of discretionary powers of the court, lack of judicial integrity, lack of judicial independence, disregard for the rule of law by the Executive, weak machinery for enforcement of court orders, and rendering of unenforceable orders.
- The judiciary must be independent in order to ward off interference by other arms of government which adversely affects its ability to discharge its mandate in a just and fair manner.
- The welfare of judges is a key factor in justice delivery, and is crucial in combating corruption in the Judiciary.
- The Attorneys-General at both Federal and State levels play a critical role in enforcement of court orders. Accordingly, the Attorneys-General must see themselves as attorneys for both the government and the people.
- The primary motivation of every legal practitioner should be the ends of justice. Legal practitioners that encourage the flouting of court orders do a great disservice to the profession and the administration of justice.
- The Judiciary can employ and train its own enforcement marshals independent of the police which is an arm of the Executive.
- The enforcement of court orders is fundamentally an administrative function.
- The Sheriffs and Civil Process Act presents a formidable obstacle to enforcement of court orders and judgements given the requirement of consent of the Attorneys-General prior to enforcement of judgments. The decisions of trial and appellate courts on section 84 of the Sheriff and Civil Process Act have failed to provide clarity on the enforcement framework.
- The debate on whether the Central Bank of Nigeria is a “public officer” for the purpose of Section 84 of the Sheriffs and Civil Process Act is ongoing.
- Conflicting judgments especially from the Court of Appeal tend to defeat the clarity needed under the judgement enforcement framework.
- The introduction of the Single Treasury Account (STA) has nearly stalemated enforcement of court orders, while judgment creditors face challenging hurdles in the attachment process.
- Contempt proceedings are defeated on grounds of technicality, thereby raising the question whether the courts are desirous to have their orders enforced.
- The judgment enforcement units of courts are fraught with fraud and corruption.
- Slow appellate process poses an impediment to the enforcement of judgments.
- The requirement for an application to the Commissioner Of Police prior to enforcement is an avenue for extortion and an additional cog in the wheel of enforcement of court judgments.
- Foreign arbitral and sundry judgments are enforceable in Nigeria. However, judgments of the ECOWAS Court judgments are not readily complied with by the Government.
The following recommendations were made by the conference:
- POLITICAL INTERFERENCE AND JUDICIAL AUTONOMY
The conference decried political interference in judicial functions and urged the Executive and Legislature to desist from such acts and commit to obey court orders. Judicial autonomy and financial independence are imperative to insulate the Judiciary from interference and foster obedience to court orders.
- ENFORCEMENT REGIME
There is a need to overhaul the framework for enforcement of court orders in order to make the process less cumbersome and less cost intensive. The Judiciary should establish its own Enforcement Unit to speedily enforce its judgements and orders. An equivalent of the United States “Marshall Service” should be enacted into law by the National Assembly to facilitate enforcement of court judgments. There is need for oversight of the activities of court officials who enforce judgments to eschew fraud and corruption.
- WELFARE OF JUDICIAL OFFICERS
There is a need to review the remuneration of judges in order to ensure that judicial officers are sufficiently motivated, diligent and deliver judgments that meet the ends of justice. An overhaul of the process for appointment of judges is also imperative to ensure that the judgements that emanate from the Judiciary are unimpeachable and non-conflicting.
- ROLE OF ATTORNEYS-GENERAL
The role of Attorneys-General in the enforcement of judgements must be reviewed to ensure that they do not act as stumbling block in the enforcement process. Section 84 of the Sheriff and Civil Process Act should be amended to remove the requirement of prior consent of the Attorneys-General before enforcement of judgments.
- ROLE OF LEGAL PRACTITIONERS
Legal practitioners who frustrate enforcement of court judgements and orders should be sanctioned.
- CRIMINAL SANCTIONS
Disobedience or disregard of court orders should attract criminal sanctions, including contempt of court proceedings against the defaulters.
- ENFORCEMENT OF FOREIGN JUDGMENTS
To promote the rule of law and foreign direct investment, arbitral awards should be enforced automatically and without recourse to the courts. The Federal Government should comply with all pending judgments of municipal and sub-regional courts among others.
- FUNDING FOR JUDGMENTS DEBTS
The Federal and State governments should make budgetary provisions for payment of judgement debts.
- APPELLATE PROCESS
There is need to quicken the appellate process to ensure that appeals do not act as a cog in the wheel of enforcement of judgments.
Dr. Monday Ubani Dr. Princess Frank-Chukwuani
NBA-SPIDEL Chairman NBA-SPIDEL Secretary/Alternate Chair, Conference Planning Committee
Dr. Uju Agomoh
Chair, Content Sub-Committee
NBA-SPIDEL 2022 Conference Planning Committee
A handy text for not only lawyers, arbitrators, and judges, but also as major reference material for industry players including architects, builders, civil and structural engineers, quantity surveyors, and project managers, among others.
Written By Ewuwuni Onnoghen-Theophilus (Mrs.), LL.M, MCIArb.
The book goes for N25,000. To order, please call 08035426089, 07065398107, send an email to email@example.com or visit www.onnoghentheophilus.com