Section 84 Of The Sheriffs And Civil Process Act, 2004: Invalid And Unconstitutional!

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 a 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 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, which requires ‘consent’ of the Attorney-General of the Federation or of the State as the case might be before the money in 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!). It is my humble observation that the provisions of the section 84 of the Sheriffs and Civil Process Act, 2004- herein after referred to as the SCPA- was adopted into Nigeria by virtue of colonialism wherein it is assumed that ‘the King can do no wrong’ by virtue of ‘Petition of Rights’. 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! Whereas the government and its agencies do not pay any official money to the court to challenge the garnishee suit or file any court process in court even up to the Supreme Court of Nigeria! 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! Fortunately, having regards to some extant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)- herein after referred to as the Constitution- and the ‘Petition of Rights’ having been held unconstitutional since the promulgation of the 1979 Constitution of Nigeria, it is my humble submission considered in this paper that the said provisions of the Constitution is invalid and unconstitutional! Hence, this topic!

The Federal Government of Nigeria, some of its agencies in collaboration with the Central Bank of Nigeria, for instance, have been unjustly relying on the provisions of Section 84(1) of the SCPA to deny a Judgment Creditor the fruits of his judgment held by the court of law in his favour. The said section 84 which provides that: ‘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 custody of a public officer who holds a public office in the service of the Federation, the Attorney-General of the Federation.’.

The Supreme Court of Nigeria in the case of C. B. N. v Interstella Communication Ltd. (2018) 7 NWLR (Pt. 1618) 294, SC. At page 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.

On the ‘Petition of Rights’ in Nigeria, Ese Malemi, The Nigerian Constitutional Law, Princeton Publishing Co., Ikeja, Lagos, 2006, at page 450 (also see page 446) had the following to say ‘PETITION OF RIGHTS IN NIGERIA- The English Petition of Rights Act, 1860 was a statute of general application, and it applied to Nigeria until it was abolished. Therefore, the State or Government could not be sued for a tort unless the consent of the State was first obtained through the Attorney General. The doctrine of State immunity which was in the Petition of Rights Act was also preserved by section 45(1) of the Interpretation Act, 1958. Furthermore, it was also not invalidated by the 1963 Republican Constitution and thus the Petition of Rights Act and its equivalent laws in the states remained in force until October 1, 1979 when the 1979 Constitution came into force and abolished the Petition of Rights Act for contravening provisions of the 1979 Constitution, particularly sections 33(1), 42(1) and 6(6)(b). All Nigerian constitutions since then have maintained this abolition of the Petition of Rights Act, for instance by sections 36(1), 46(1) and 6(6)(b) of the 1999 Constitution. The important sections of the now repealed Petition of Right Act, Cap 149, Laws of the Federal of Nigeria, 1958, as amended by Legal Notice No. 112/1964, were sections 3, 4 and 9…’. Also see the case of: Governor of Imo State v Greeco Construction & Engineering Associates Ltd. (1985) 3 NWLR pt. 11, P. 71, CA. Bakare v A.G. Fed. (1990) 5 NWLR p. 152, p. 516 SC. For emphasis, See: Page: 456 of Ese Malemi (op.cit). stated as follows ‘By section 274(1) of the 1979 Constitution, the Petition of Rights Law was an existing law. Where the provisions of an existing Act or Law is inconsistent with the provisions of a written constitution, then such earlier Act or Law is impliedly repealed to the extent of its inconsistency. The power of court to declare any existing law invalid on the ground of inconsistency is recognized by the Nigerian Constitution. It does not require express legislation before any existing law can be declared invalid on the ground of inconsistency’.

Now therefore, Section 287 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution- provides thus ‘287.—(1) The decisions of the Supreme Court shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Supreme Court. (2) The decisions of the Court of Appeal shall be enforced in any part of the Federation by all authorities and persons and by courts with subordinate jurisdiction to that of the Court of Appeal. (3) The decisions of the Federal High Court, a High Court and of all other courts established by this Constitution shall be enforced in any part of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts, respectively’. Also, section 6(1) and (6)(a) and (b) of the Constitution provides thus ‘6.—(1) The judicial powers of the Federation shall be vested in the courts to which this section relates, being courts established for the Federation. (6) The judicial powers vested in accordance with the foregoing provisions of this section— (a) shall extend notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law; (b) shall extend to all matters between persons, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;’.

Therefore, in my humble view, placing the section 84 of the SCPA side by side the provisions of the Constitution above by interpretation, it is my humble submission that the said section 84 of the SCPA is invalid and unconstitutional! This is also because, it is a way of subjecting the Constitution to the provision of the Statute i.e. the section 84 of the SCPA! In other words, a way of subjecting the decision and or powers of the court of law to the whims and or the authority of the AGF i.e. the government and its agencies who are parties to the case which the court of law has determined and or finalized against the government and or any of its agencies!

Now therefore, the word ‘unconstitutional’ has been defined by the Webster Online dictionary to mean ‘not allowed by the constitution of a country or government; not constitutional’.

Furthermore, it is my submission that the concern of the Constitution is to declare such an act or omission that is ‘inconsistent’ with any of the provisions of the Constitution and thereby challenging the ‘superiority’ of the Constitution to be ‘void’ or ‘null and void’ as the case might be. This expression is contained in section 1 generally and sub-section 1(3) of section 1 (specifically) of the Constitution which provides thus ‘1.—(1) This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria. (2) The Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this Constitution. (3) If any other Law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other Law shall to the extent of the inconsistency be void.’. (Underlining is mine for emphasis). The word ‘void’ has been defined by the Court of Appeal in the case of Buraimoh v Karimu (1999) 9 NWLR (pt.618) 310 C.A. as follows ‘void’ means ‘ineffectual, nugatory, having no legal force or binding effect, which is unable, in law, to support the purpose for which it was intended. In its strictest sense, it means that which has no force and effect, without legal efficacy and is incapable of being enforced by law or has no legal or binding force. However, the word ‘void’ is used in Statutes in the sense of utterly void as to be incapable of ratification and also in the sense of voidable and recourse must be had to the rules of construction in many cases to determine in which sense the legislature intended to use it’. And in the case of Ishola v Ajiboye (1998) 2 NWLR (pt.532) 71 C.A., the Court of Appeal held thus ‘when a thing is void, it does not exist, you cannot put something on nothing, it will just not stand’.

The words ‘null and void’ was expressed by the Supreme Court in the case of Adefulu v Okulaja (1996) 9 NWLR (PT.475) 668 SC., in the following words ‘once an act has been declared ‘null and void’ by a court of law, the effect in law is that the act was never carried out. And in Ishola v Ajiboye (supra), the Court of Appeal held as follows ‘when an act or decision is declared ‘null and void’, it is meant to say that the act or decision binds no one and is incapable of giving rise to any right or obligation under any circumstance’.

The Supreme Court of Nigeria has held in A.C.B. V Losada (Nig.) Ltd. (1995) 7 NWLR (pt.405) 26, thus: ‘It has never been the case in our laws that the provisions of any ordinary statute would render nugatory the relevant provisions of the constitution. Therefore, if any law of the State including a subsidiary legislation… is inconsistent with the provision of the constitution, the provision of the constitution prevails and that State law is to the extent of inconsistency void’. Also see: Achu v C.S.C. Cross Rivers State (2009) 3 NWLR (pt. 1129) 475. Further see: the case of INEC v Musa (2003) 3 NWLR (pt. 806) 72 SC, page 157, at paras. D-G, (Ayoola, J.S.C).

In Nafiu Rabiu v. Kano State , (1980) 8-11SC 130 at pp 148-149, Udo-Udoma, JSC, (as he then was) re-emphasised the ‘concept of constitutional supremacy’ in the following words: ‘… it is the duty of this Court to bear constantly in mind, the fact that the present Constitution has been proclaimed the supreme law of the land, that it is a written, organic instrument meant to save not only the present generation, but also several generations yet unborn; that it was made, enacted and given to themselves by the people of the Federal Republic of Nigeria in Constituent Assembly assembled-for which reason and because it is autochthonous, it, of necessity, claims superiority to and over and above any Constitution ever devised for the governance of this country-the unwarranted intermeddleness of the military authority with some of its provision notwithstanding; that the function of the Constitution is to established a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural dynamic society….’.

Furthermore, I humbly submit that the ‘blue pencil’ rule shall be applied to any legislation that contains inconsistent parts and or portions in order to bring it into conformity with the provisions of the Constitution. This was also the decision of the Supreme Court of Nigeria on the ‘blue pencil Rule’ in the case of A.G. Ondo State v A.G. Federation (2002) 9 NWLR (Pt.772) page 722. SC., where the Court held as follows: ‘where only some portions of a legislation are unconstitutional or bad and the rest is not affected, so that the good can be severed from the bad, the court would not invalidate the whole of the Act, but apply the blue pencil rule to strike out the portions affected.’ This is the doctrine of ‘Blue Pencil Rule’.

Furthermore, the current attempt by the House of Representatives of Nigeria (sponsored by the Chairman of the House Committee on Judiciary, Mr Onofiok Luke, as reported on the 27^th August, 2020, the PUNCH Online News Paper) to delete the said section 84 of the SCPA from the Act is still a good one if some interests do not render the step unsuccessful! Though, before now, our courts ought to have identified the ‘inconsistency’ of this section 84 of the SCPA and strike same out long before now, since a number of such garnishee proceedings have been filed before the courts on the issue of ‘consent’ of the AGF! The word ‘delete’ has been carefully used which according to the online Merriam Webster Dictionary, means among other meanings as: to eliminate especially by blotting out, cutting out, or erasing:. It also has the synonyms of the following words ‘blue-pencil, cancel, cross (out), dele, edit (out), elide, kill, scratch (out), strike (out), stroke (out), x (out). Which in this present case of the Section 84 of the Sheriffs and Civil Process Act, would mean that upon the passage of the Bill into law, the said section 84 of the Sheriffs and Civil Process Act stands eliminated, especially by blotting out, cutting out, or erasing, from the provisions of the Sheriffs and Civil Process Act.

Finally, having regards to the above legal arguments and submissions, I humbly submit 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 the section 84 of the SCPA is a total injustice to Nigerian citizens who have successfully won government or any of its agencies in court! Nigerian lawyers can (whenever the provisions of section 84 of the SCPA is raised by the AG or the Central Bank of Nigeria) also use my submissions above in court of law to seek the court to declare the section 84 of the SCPA as invalid and unconstitutional and to thereby strike out same from the SCPA!

Email: hameed_ajibola@yahoo.com