The Impediments of Seamless Execution of Court Orders in Nigeria — Any Way Out?

A Text Of Lead Presentation By Hon. Justice Benedict Bakwaph KANYIP, PhD, FNIALS, FCTI, Fcarb President, National Industrial Court Of Nigeria At The Annual Conference Of The Section On Public Interest And Development Law (SPIDEL) Of The Nigerian Bar Association (NBA) On August 4-5, 2022, At The NBA Auditorium, Abuja

Afe Babalola – Enforcement of Judgments (Intec Printers: Ibadan) 2003 at page 1:

A party who has successfully obtained a final order or signed judgment against another has only won the first round of the fight.

Fidelis Oditah – “Legal Practice in Nigeria: Challenges and Solutions”, a paper presented at the Nigerian Bar Association Section on Legal Practice 2022 Annual General Conference held on 4 July 2022 at The Dome, Asaba, Delta State, Nigeria:

Nigerian law is excessively and self-destructively procedural

Our civil and criminal justice system is obsessed with form rather than substance

We take refuge in box-ticking, formulas and catchphrases instead of analysis

Captain Benedict Olusoji v. The Nigerian Army & 3 ors v. CBN unreported Suit No. NICN/ABJ/304M/2020, the judgment of which was delivered on 5 October 2021:

119. …The CBN, being an artificial person, cannot thus be “a public officer” as to have the custody of money “in his official capacity”. We must note that by Major General Kayode Oni (Rtd) & 4 ors v. Governor of Ekiti State & anor [2019] LPELR-46413(SC) “it is settled that for artificial entities, including governmental offices (and the Governor in this case), the rule is that all acts are prohibited except specifically permitted”. The CBN cannot lay claim to what has not been specifically provided for it in section 84(1) of the SCPA.

Section 287 of the 1999 Constitution:

(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, the National Industrial 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 other courts of law with subordinate jurisdiction to that of the Federal High Court, the National Industrial Court, a High Court and those other courts, respectively.

CBN v. Shipping Company Sara B.V. & ors [2015] LPELR-24664(CA) decided on 20 March 2015 per Obaseki-Adejumo, JCA:

…I need not repeat that the constitutionality of Section 84 of the Sheriff and Civil Process Act has also been settled in a long line of cases. See ONYEWU v KSMCIÂ (Supra); GOVERNMENT OF AKWA IBOM STATE v POWER COM NIG. LTD (Supra). For the umpteen times, Courts have held that the requirement for the Attorney General’s consent is not inconsistent with the provision of Section 287(3) of the 1999 Constitution and until set aside it remains good law.

CBN v. James Ejembi Okefe [2015] LPELR-24825(CA) decided on 16 June 2015 per Omoleye, JCA:

The issue of constitutionality of requiring prior consent of the Attorney-General before issuance of garnishee order nisi under Section 84 of the Sheriffs and Civil Process Act is not new and has been raised and decided in some previous decisions of this Court. These include: (1) Onjewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 827) 40; (2) Government of Akwa Ibom State v. Powercom (Nig.) Ltd. (2004) 6 NWLR (Pt. 868) 202. These two cases were not considered by the trial Judge. In the two cases, this Court held that obtaining prior consent of the Attorney-General under Section 84 of the Sheriffs and Civil Process Act is mandatory. In these decisions, this Court has accepted the provision of Section 84 of the Sheriffs and Civil Process Act as necessary procedural safeguard needed by Government to avoid embarrassment and specifically held that it does not do violence to the provisions of Section 287 (3) of the 1999 Constitution.

CBN v. Oscko Petroleum Ltd & ors [2018] LPELR-46732(CA) decided on 21 December 2018 per Adamu Jauro, JCA (as he then was):

…obtaining prior consent of the Attorney-General under Section 84 of the Sherriff’s and Civil Process Act is mandatory. In the case of Onjewu Vs kogi State Ministry of Commerce and Industry (2003) 10 NWLR (part 827) at 79 A – D Muntaka – Coomassie, JCA (as he then was) after considering Section 287 (3) of the 1999 Constitution and all the points canvassed as to the Constitutionality of the provisions of Section 84 of the Sheriffs and Civil Process Act that the king can do no wrong, said. “I hold that since the demand for the consent of the Attorney General of the state is sort of procedural and administrative in nature and it has not made any violence to the Constitution, it can be tolerated and accepted. I hold that the requirement of the consent or authorization/permission of the Attorney General of a State is necessary before the judgment of a High Court can be enforced. The provisions of Section 84(3) of the Sherriff and Civil Process Law could not be said to be inconsistent with the relevant provisions of the 1999 Constitution of the Federal Republic of Nigeria. That being a case this Court will have no reason to disturb the position taken by trial Court that failure of the judgment creditor to comply with the condition precedent of obtaining the consent of the Hon. Attorney General deprived that Court of the jurisdiction to hear the provisions of the 1999 Constitution and I so hold.” Furthermore, in the cases ofOnjewu Vs K.S.M.O & 1 (2003) FWLR (part 181) 1590 at 1615 paragraphs D G and Omenka Mathew Ode & Ors Vs Attorney General of Benue State & Ors (2011) LPELR – 4774 (CA), the Court held the view that no garnishee shall lie or be commenced against any government without the consent of the Attorney General, and Section 84(1) of the Sheriffs and Civil Law Cap 407 Laws of the Federation of Nigeria 1990, which requires the consent of Attorney General before a Court could validly issue a garnishee order nisi against funds in the hands of a public officer was not inconsistent with the relevant provisions of the 1999 Constitution on the ground that such provision was to ensure sound financial administration, avoid embarrassment to the government and aimed at protecting public funds. Therefore, the requirement of consent is indispensable where the money is in custody of a public officer.

Section 83 of the Sheriffs and Civil Process Act (1) The court may, upon the ex parte application of any person who is entitled to the benefit of a judgment 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.

(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.

GTB Plc v. Engr Musa Bamanga Tafida & anor [2021] LPELR-56131(CA) per Affen, JCA, relying on Ecobank v. Udofia [2018] LPELR-45164(CA) 1 at 10 per Adah, JCA:

…There is a growing tendency to commence garnishee proceedings against all banks licensed by the Central Bank of Nigeria to operate in the country as in the instant case where nineteen banks were listed as garnishees; and the deponent of the affidavit in support of the ex parte application merely averred that he was informed by the judgment creditor that the judgment debtor “maintains an account with the garnishees to satisfy the judgment sum of N35,000,000” without supplying the number or other details of the “account” the judgment debtor allegedly maintains with all the garnishees. The reason often advanced for this practice is that the confidential nature of the banker-customer relationship prevents judgment creditors from having ready access to bank details of judgment debtors. Whilst the difficulty of ascertaining the account details of judgment debtors is appreciated, that does not seem to me a valid basis for Courts of law to condone the insidious practice of initiating garnishee proceedings against all banks operating in Nigeria merely on the say-so of a judgment creditor that the judgment debtor maintains an account(s) with the garnishees without providing any basis for that assertion…To my mind…the affidavit must disclose the fact of indebtedness of the third party to the judgment debtor, and not merely that the third party is likely to be indebted. The basic premise of garnishee proceedings is that it can only lie against a debtor to the judgment debtor, hence a judgment creditor has no right whatsoever to proceed against any person who is not shown to be indebted to the judgment debtor in the supporting affidavit…But whilst it would seem that S. 83(1) SCPA does not impose a strict obligation to provide the account details of a judgment debtor as a precondition for initiating garnishee proceedings against a bank, the provision enjoins the judgment creditor/applicant or his legal practitioner to show upon affidavit that the third party (bank) is indebted to the judgment debtor. What this means is that the applicant is required to show that the judgment debtor maintains an account with the bank…It seems to me therefore that listing all banks operating in the country as garnishees is a signpost of failure or neglect to satisfy this basic requirement, and the ex parte application for garnishee order nisi ought to be refused; or granted if, and only if, the applicant gives an undertaking as to damages [or to pay costs on full indemnity basis] where it turns out that the judgment debtor does not maintain an account with the garnishees or any of them…The emerging practice of routinely listing all banks operating in the country as garnishees (as in the instant case) and thereby exposing them to needless expense without the slightest effort to first show the particular bank(s) indebted to the judgment debtor is one that should not be encouraged for its deleterious effect. The far-reaching implications of allowing all banks operating in this country to be dragged to Court willy-nilly to answer to garnishee proceedings at the instance of every litigant who obtains a favourable money judgment from all Courts in Nigeria can only be imagined.

Section 84 of the (1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not be made under the provisions of the last preceding 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 the court in the case of money in custodia legis, as the case may be.

(2) In such cases the order of notice must be served on such public officer or on the registrar of the court, 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 public service of the Federation, the Attorney-General of the Federation;

(b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.

Section 18(1) of the Interpretation Act Cap I23 LFN 2004 defines “public officer” as “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the public service of a State”.

Given the definition of “public service of the Federation” in section 318(1) of the 1999 Constitution, being a member of the public service of the Federation can only mean being a staff in the service of the Federation in any capacity including being a staff of any of the bodies enumerated above. The CBN is an agency of the Federal Government established by an Act of the National Assembly, the CBN Act. It is its staff that qualify as members of the public service of the Federation, not the CBN itself as an institution or agency.

Despite CBN v. Interstella Communications Ltd & ors [2018] 7 NWLR (Pt. 1618) 294, the following recent Court of Appeal decisions are to be found in the Law Reports.

Ecobank Nig. Plc v. Admiral Environmental Care Ltd & ors [2021] LPELR-56130(CA) per Affen, JCA:

…It cannot escape notice that S. 84 (3) SCPA defines “appropriate officer” but not the public officer who has custody or control of the money sought to be attached by means of garnishee proceedings. However, it seems to me that even without seeking guidance from anywhere else, the chapeau of S. 84 of the SCPA (reproduced above) which talks about money in the custody or under the control of a public officer “in HIS official capacity” clearly suggests that the reference is to a human male person, which in legal parlance includes the feminine gender, but not an artificial entity or institution. See S. 14(a) of the Interpretation Act, Cap. I23 L.F.N. 2004 to the effect that “words importing the masculine gender include females”. What is more, S. 84(3)(a) and (b) which refers to money which is in the custody of a public officer who holds a public office in the public service of the Federation or of a State equally suggests that the reference is to ‘the holder of a public office’ as distinct from the public office or institution in which he/she holds the office. To put matters beyond cavil, the Interpretation Act which guides the interpretation of the Constitution [see S. 318(4) of the 1999 Constitution] as well as all enactments except insofar as the contrary intention appears [see S. 1 of the Interpretation Act)] defines ‘public officer’ in S. 18(1) thereof as “a member of the public service of the Federation within the meaning of the Constitution of the Federal Republic of Nigeria 1999 or of the public service of a State”…It seems to me therefore that the meaning of the term public officer is not in any doubt; it refers to a human person occupying or functioning in a public office or governmental institution in which his/her services are engaged, but not the office or institution itself.

CBN v. Tripple C. Acquisition Ltd & ors [2022] LPELR-57441(CA) decided on 8 April 2022 per Peter Olabisi Ige, JCA:

…The role of a garnishee in any garnishee proceeding is delimited. As rightly argued by the counsel for the 1st and 2nd respondents, it is not envisaged that after a judgment creditor has gone through the rigours to establish his rights through the legal system, that the garnishee, who is asked to surrender the judgment debtor’s money in its possession should engage the judgment creditor in another bout of legal battle…

…I am of the firm view that Section 84 of the Sheriffs and Civil Process Act has no application to the Garnishee proceedings leading to the Garnishee Order absolute made on 6th February, 2017 and even if it is applicable (a fact not conceded) the 1st Respondent has fulfilled all conditions precedent before the institution of the Garnishee proceedings.

CBN v. NX2 Merchant & Nigeria Ltd & ors [2022] LPELR-57490(CA) decided on 29 April 2022 per Haruna Simon Tsammani, JCA:

…The Appellant, I reiterate, is therefore, not a public officer within the context of Section 84 of the Sheriff and Civil Process Act, though it acts as Banker to the Federal Government Funds in its custody. See Sections 2(e) and 36 of the CBN Act. See also, Central Bank of Nigeria v. Access Bank Plc. & Ors. (2022) LPELR 570(CA). I therefore hold that, the Appellant, not being a public officer, the need to seek consent of the Attorney General of the Federation did not arise. It therefore means that, the Application for such consent, made by the 1st Respondent’s solicitor, was done in error, or at best is an excess baggage. In other words, the consent of the Attorney-General of the Federation was not required before the initiation of the garnishee proceedings, the subject of this appeal.

CBN v. Magpie Trading Tfze & ors [2022] LPELR-57531(CA) decided on 29 April 2022 per Haruna Simon Tsammani, JCA:

…I agree with learned counsel for the 1st Respondent that the Appellant, is not a public officer within the context of Section 84 of the Sheriffs and Civil Process Act. That being so, the consent of the Attorney-General of the Federation was not required before the initiation of the garnishee proceedings, the subject of this appeal.

CBN v. Kruggerbrent & Co. Nig. Ltd & ors [2022] LPELR-57571(CA) decided on 29 April 2022 per Haruna Simon Tsammani, JCA:

The Appellant, I reiterate, is therefore, not a public officer within the context of Section 84 of the Sheriff and Civil Process Act, though it acts as Banker to the Federal Government Funds in its custody. See Sections 2(e) and 36 of the CBN Act. See also, Central Bank of Nigeria v. Access Bank Plc. & Ors. (2022) LPELR-57017(CA). I therefore hold that, the Appellant, not being a public officer, the need to seek consent of the Attorney General of the Federation did not arise. It therefore means that, the Application for such consent, made by the 1st Respondent’s solicitor, was done in error, or at best is an excess baggage. In other words, the consent of the Attorney-General of the Federation was not required before the initiation of the garnishee proceedings, the subject of this appeal.

CBN v. Elder Abel Ezeanya & ors [2022] LPELR-57598(CA) decided on 9 May 2022 per Adebola Samuel Bola, JCA:

Access Bank Plc v. Mr Ugochukwu Gerald Igwe & anor [2022] LPELR-57765(CA) decided on 2 June 2022 per Adebola Samuel Bola, JCA:

…it is the considered view of this Court that the decision of the Supreme Court in CBN V. Interstella Communication Ltd (2018) 7 NWLR (1618) 294 has put an end to the conflicting decisions and controversies as to whether the Central Bank of Nigeria (CBN) is a public officer within the meaning of Section 84(1) of the Sheriffs and Civil Processes Act or not.

Arising from the foregoing, I hold that the Central Bank of Nigeria is not a public officer within the intendment of the provision of Section 84(1) of the Sheriffs and Civil Processes Act. In the light of this, it is held that the consent of the Attorney General of the Federation was not required before the commencement of the garnishee proceeding. It is therefore not necessary for the consent of the Attorney General of the Federation be sought and obtained before the lower Court could grant the Garnishee Order Nisi and eventually Garnishee Order Absolute. The lower Court has the jurisdiction to entertain garnishee proceeding for the enforcement of Judgment in which the Central Bank is a custodian of the fund sought to be garnisheed to satisfy the Judgment debt.

CF: CBN v. Access Bank Plc & ors [2022] LPELR-57017(CA) decided on 10 March 2022 per Mohammed Baba Idris, JCA:

…It is therefore my decision after considering the arguments of the learned Appellant’s Counsel in the Appellant’s Brief of Argument alongside the Reply Brief of Argument and the authorities contained therein, that the trial Court had no jurisdiction to entertain the garnishee proceedings against the Appellant viz-a-viz the provisions of Section 84 of the Sheriff and Civil Process Act and Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The Appellant being a public officer, the 1st Respondent needed to obtain the prior consent of the Attorney General of the Federation before instituting the garnishee proceeding against the Appellant as the said Section 84 of the Sheriff and Civil Process Act is Mandatory.

Idris, JCA rationalized his position thus:

It would be absurd to interpret a Public Officer in Section 84 of the Sheriff and Civil Process Act in the restrictive sense as interpreted on the basis of Section 318 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) alone, because if so done the safety measures put in there for Government funds would have been defeated. Government funds kept in the Central Bank of Nigeria are not kept with a particular individual who is a public officer. This is why the interpretation given to Public Officer in the case of IBRAHIM V J.S.C. (supra) by the Supreme Court should apply to all cases. It should therefore enjoy or be given a general application instead of limiting the definition to office holders only.

CBN v. Abiodun Arigbabuwo Osonoki & ors [2022] LPELR-57210(CA) decided on 3 March 2022 per Owoade, JCA, relying on CBN v. Alhaji Mohammed Kakuri [2016] LPELR-41468(CA) and CBN v. Maiyini Century Company Ltd & anor [2017] LPELR- 43024:

…It is clear therefore that the failure of the 1st Respondent to obtain the consent of the Attorney General of the Federation before commencement of the garnishee proceedings renders the proceedings and the orders served therefrom a nullity. This is because where a condition precedent is placed for initiating an action, such condition must be complied with to vest a Court with jurisdiction to entertain the matter…

Peter Oyin Affen – “Is the Central Bank of Nigeria a Public Officer for the purposes of Garnishee Proceedings?”, unpublished paper, in his concluding words stated thus:

The Sheriffs and Civil Process Act (SCPA), which entered into force on 1st June 1945 as an ordinance of the Colonial Administration, certainly did not contemplate (nor could it have contemplated) the Treasury Single Account (TSA) policy and the attendant consolidation of all inflows (payments and receipts) from all agencies of government into a single account or a set of linked accounts at the Central Bank of Nigeria, which makes the CBN a necessary party in the deluge of garnishee proceedings filed in the wake of the TSA policy. But as demonstrated above, the definition of “public officer” in s. 18 of the Interpretation Act clearly excludes governmental bodies and institutions, including CBN; and the decision of the Supreme Court in CBN v Interstella Communications Ltd is that the CBN which acts as a Banker to the Federal Government with respect to government funds in its custody pursuant to ss. 2(e) and 36 of the Central Bank of Nigeria Act “does not stand as a public officer in this situation”, and no necessity arises to seek the consent of the Attorney-General as a precondition for initiating garnishee proceedings against the CBN. It would seem therefore that the answer to the question posed in the caption of this chapter is necessarily in the negative.