Enforcement Of Judgments Against Governments, Cause Of Executive Rascality.

The power of the court to enforce a judgement is derived directly from Section 6(6) (a) of the 1999 constitution as amended. The judgement of the court is such that once given, it is binding, authentic and official being the judicial determination of the case by the court in respect of the claim before it. By Ibrahim v. Emien (1996) 4 NWLR 592 at 608, enforcement implies using all ‘available means employed in giving effect to the judgment of a court”. Enforcement of judgments against the government, either state or federal however carries its own twist. By Section 7 of the Petition Right Act Cap 149 Laws of the Federation as well as the Petition Rights Laws of various states, and Section 84 of the Sherriff and Civil Processes Act, no execution can be levied against the government without the fiat of the Attorney General of the Federation or of the State. In Central Bank of Nigeria v. Hydro-Air Property Ltd (2014) 16 N.W.L.R (Pt.1434), the Supreme Court relying on Section 84 of the Sherriff and Civil Processes Act held that the consent of the Attorney General was needed before execution could be levied against the state and that it is mandatory. In practice, the judgment debtor is required to apply for a fiat from the Attorney General to allow him execute the judgment of the court against the government, and the Attorney General maintains the discretion whether or not to grant the said fiat. The rationale offered so far for this law is that the government works with budgets and these budgets, when passed and signed into law, are absent of a portion for judgment debts. Therefore, if a fiat is granted, it would frustrate other projects for which the funds have been, ultimately affecting the public for whom the projects would benefit. Whilst it is understandable that a government should be guided by a budget, this reasoning does not provide justice to the victim in whose favour judgment has been given, nor restore investor confidence in a system already bugged down with questions of effectiveness. Many have stated that hardly has there been a time when judgement debts were budgeted for in the National Budget, nor has the Attorney General readily given a fiat; a judge in its own court of sorts situation. Thus, persons like the disabled man recently the subject of disturbing brutality by the Nigerian Army at the Onitsha market would end up empty should he attempt to enforce the said judgment without the same government giving its ‘approval’. The present system is rigged with obvious defects and difficulties. Thus, this writer suggests:

1. Section 5 of the Petitioners Act and Section 84 of the Sherriff and Civil Processes Act and other corresponding state enactments should be amended, such that where an application for fiat is made to the Attorney General and he fails to issue same within a stated period (e.g. 14 days) or take any legal action in that effect, the judgement debtor will automatically have a right to enforce the judgement without any further recourse.

2. The Sherriff and Civil Processes Act should be amended to the effect that, upon obtaining judgment against the government, the judgment creditor should send a Certified True Copy of the judgment to the Minister of Budget and Planning who shall then include same as part of the budget of the Ministry, Department or Agency, payable from its present allocations. Such MDA shall also be responsible for achieving the difference. Such judgment debt should thus rank higher in priority than any other money that will accrue to that Ministry, Department or Agency.

It is imperative that the Attorney General, as the principal law officer of the state, recognizes his duty to assist and frustrate the judicial process, even (and especially) where it affects the government. Per Ogundare JCA, in the case of Jallo v. Gov. of Kano State (1991) 5 N.W.L.R (Pt.193) 754 at 764, ‘No attorney general worth his salt, should fold his arms and do nothing when the state is a judgement debtor”. Other thoughts and recommendations are welcome. About the Author: Ikechukwu Nwakanma is a Junior Associate at Perchstone & Graeys, a leading commercial law firm in Nigeria, with especial competence in Energy & Infrastructure, Banking & Finance, Dispute Resolution and Corporate & Commercial Law. Photo Credit: Lawnn.com]]>