1). INTRODUCTION:
Let us assume that Mr. Buga litigated a commercial dispute against the government (Federal or state) in Court and won. How would Buga enforce this Judgment?1 What possible brick wall(s) is Buga likely to face while trying to enforce the Judgment through garnishee proceedings?2 This Paper attempts to briefly interrogate these and connected issues through the lens of the Supreme Court's majority and dissenting judgments in Central Bank of Nigeria v. Inalegwu Frankline Ochife & 3 Ors,3 delivered on the 24th day of January 2025.
2). SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT (S & CPA)4
"84. (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) - - - -
(3) (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."
3). FOUR REASONS ADVANCED IN SUPPORT OF SECTION 84 OF THE S & CPA5
It is clear from the foregoing that the purpose of section 84 of the S & CPA6 is to, amongst others, ensure that the consent of the Attorney General of the Federation/states ("AGs") is always sought and obtained before initiating any garnishee proceeding against the government. One argument has been that enforcing a judgment against the government without the consent of the AG may lead to draining the government's treasury. Another is that section 84 is to prevent the government from being swamped with frivolous and gold-digging judgment debtor claims. Another argument advanced is that it would embarrass the AG who probably would have no knowledge that funds earmarked for some other governmental purpose(s) have been diverted in satisfaction of a judgment debt, without prior notice to the government.7 A further argument is that seeking the AG's consent is intended to give the government ample notice to pay up its debts of which principal government functionaries may be oblivious.8
4). THE IMPLICATIONS OF SECTION 84 OF THE S & CPA9
Sadly, many judgment creditors have suffered untold hardship because of this provision. In AKPAN v. ECONOMIC AND FINANCIAL CRIMES COMMISSION,10 the Court of Appeal appeared to have given its imprimatur to the need to obtain the AG's consent before initiating garnishee proceedings thus:
... 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, the order nisi shall not be made under the provisions of Section 83 (sic) of the Sheriffs and Civil Process Act, unless consent to such attachment is first sought and obtained from the appropriate officer, that is, the Federal Attorney General in the case of money in custody or control of a Public Officer, the 2nd Respondent herein. It does not matter that the Attorney General was/is a party in the matter. Failure to obtain the prior consent of the Attorney General before instituting the garnishee proceeding robbed the lower Court of the requisite jurisdiction to adjudicate/grant the order nisi. (Emphasis added).
5). THE DECISION IN CBN V. INALEGWU FRANKLINE OCHIFE & ORS11
A brief background to the case was that the 1st Respondent had on the 10th day of October 2018 obtained a ₦50,000,000.00 (Fifty Million Naira) only Judgment against the 2nd (the Inspector General of Police), 3rd (the Commissioner of Police, FCT), and 4th (the OC Intelligence Response Team, Special Anti-Robbery Squared (SARS)) Respondents. The 1st Respondent thereafter sought to enforce the Judgment at the Federal High Court, Abuja, by attaching funds standing to the credit of the 2nd – 4th Respondents with the Appellant (the Central Bank of Nigeria) under the Treasury Single Account (TSA) policy.
The Appellant, in its affidavit to show cause, disclosed that the Judgment Debtors (2nd – 4th Respondents) did not maintain any account with the Bank. On the date set for hearing the application, the Appellant was absent. The Court proceeded to make the order nisi absolute on the basis that, amongst others, the affidavit to show cause was filed out of time, and no effort to regularise same was made. Thus, the Appellant's averments contained therein were deemed incompetent and thus disregarded. Since the 1st Respondent's averments in the affidavit in support of the motion ex-parte were deemed uncontested, the Court thereon made the order nisi, absolute. Dissatisfied, the Appellant appealed to the Court of Appeal, which dismissed the Appeal. On the 24th day of January 2025 the Apex Court by a 4/1 majority decision, allowed the further appeal on the basis that amongst others, the Lower Court perversely took account of matters which it ought not to take account of prime of which was the Lower Court's decision that the 2nd – 4th Respondents were akin to Ministries, Departments, and Agencies ("MDAs") that maintained accounts with the Appellant under the Treasury Single Account ("TSA") of the Federal Government, despite evidence by the Appellant to the contrary.12
6). COMMENTS ON THE DISSENTING JUDGMENT OF THE HON. JUSTICE OGUNWUMIJU, JSC ON SECTION 84 S & CPA13
In her dissenting judgment, the Hon. Justice Ogunwunmiju, JSC provided very remarkable and profound reasoning.14 Hon. Justice Ogunwunmiju's dissenting judgment (in this writer's view) foreshadows the likely jurisprudential and policy stance that the Apex Court may take in subsequent similar cases.
The dissenting judgment traced the administrative history of section 84 of the Sheriffs and Civil Process Act as a pre-independence legislation enacted primarily to protect the colonial administration's coffers. Constitutionally, the judgment reinforced the finality of all courts' judgments (in the absence of an appeal) and the duty imposed on all authorities and persons to enforce same throughout the Federation in line with section 287 of Constitution of the Federal Republic Of Nigeria, 1999 ("CFRN, 1999" as amended).15 It noted that section 287 of the CFRN, 1999 traces its roots to section 251 of the Constitution of the Federal Republic of Nigeria, 1979,16 which has a corollary provision in both the 1963 Republican and the 1960 Independence Constitutions. Now, section 251 of the 1979 Constitution provides that:
"251 –(1). The
decisions of the Supreme Court shall be enforced in any part of the
Federation by allauthorities and persons,
and by courts with subordinate jurisdiction to
that of the Supreme Court.
(2). The decisions of the Federal Court of Appeal shall be enforced in all parts of the Federation by all authorities and persons, and by courts with subordinate jurisdiction to that of the Federal Court of Appeal.
(3). The decisions of 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 High Court and those other courts, respectively."
It was noted that the constitutional implication of the above, as of 1979, was that no valid court judgments should be subjected to any other vetting authority (including the AG's) or person(s) before it can be executed. Unsurprisingly, the Federal Military Government in 1993, through the Federal Military Government's Constitution (Suspension and Modification) Decree No. 107, modified section 251 of the 1979 Constitution above. This modification gave constitutional recognition to section 84 of the Sheriffs and Civil Process Act17 because it inserted an additional subsection 4 to section 251 of the 1979 Constitution thus:
"(4). Notwithstanding the provisions of this section, no person shall enforce a judgment against a ministry or extra-ministerial department without the fiat of the Attorney General of the Federation or the Attorney General of a State, whether or not he was, in either case, a party to the proceedings."
Interestingly, it was observed that the above subsection 4 inserted in section 251 under Decree No. 107 by the Federal Military Government was deleted in the extant 1999 Constitution.18
7). WHAT THEN IS THE IMPLICATION OF THE DELETED SUBSECTION 4?
The dissenting judgment has not left us without an answer! It pronounced:
In my view, if Section 84 of the S & CPA had existed since 1945 and Decree 107 was promulgated in order to give it constitutional flavour by incorporating it as Section 251(4) of the 1979 Constitution in 1993 by the Military Junta, the law makers definitely did so because they recognised the point that Section 84 of the S & CPA (on its own) was not only inferior to the 1979 Constitution but also in conflict with it. It is therefore my view that standing on its own as it is today, and not being made a provision of the 1999 Constitution, it cannot be validly argued that it is not in conflict with the constitution. (Emphasis added).
My Lady further deprecated the reasoning behind the provision, affirming that:
It is both incongruous and ludicrous that the monetary judgment of the Courts where it involves the government must be subject to the AG or AGF as the case may be, who by the wordings of Section 84 of the S & CPA seems at liberty to withhold or grant consent according to his whims and caprice, thus subjecting the judgment of the Courts to the supervisory authority of the AGF.
The Jurist further pronounced that:
I cannot agree that the embarrassment to government where government money is claimed by a judgment creditor is sufficient reason for a single functionary of the Executive arm at the State (AG) or Federal (AGF) level to supervise the judiciary which is the obvious implication of Section 84 of the S & CPA. One must rue the day and shudder at the spectre of a monetary judgment of the Supreme Court of Nigeria being subject to the supervision of the AG or AGF pursuant to Section 84 of the S & CPA. It detracts from Section 287 which imposes a duty on all authorities and persons to enforce the decisions of the Court and also creates a mandatory duty on the office of the AGF and other persons and institution to automatically enforce the judgment of Courts unless there is a stay and an appeal against that judgment. In the comity of nations, it is more embarrassing for the judiciary of Nigeria to be seen as a toothless bulldog whose judgment can be ignored at the will of the executive. It is equally very embarrassing that a foreign judgment creditor would be told that after going through the judicial process to get his rights, he has to go back to the executives for permission to enforce.
In sum, although the Supreme Court has not buried the provision of section 84 of the Sheriffs and Civil Process Act19 the dissenting Judgment of the Hon. Justice Ogunwumiju, JSC, futuristically suggested the burial rite of the vexed provisions of section 84 of the Act. The dissenting Judgement unmistakenly held that section 84 of the Sheriffs and Civil Process Act is inconsistent with the Constitution of the Federal Republic Of Nigeria, 1999, especially section 1 on the supremacy of the Constitution, section 6 on the powers of the court to hear and determine matters to the exclusion of any other body(ies), section 287 (subsections 1,2, and 3) on the duty on all authorities and persons to enforce the judgements of courts, and by implication, section 33(1) on the right to access a court of law for remedy(ies).
8). MATTERS ARISING FROM THE JUDGMENT AND CONCLUSION:
8.1 The dissenting decision of Hon. Justice Ogunwumiju, JSC suggested a new vista on how we ought to view previous decisions on this issue such as in CBN v. Interstella Communication Ltd & Ors;20 Government of Akwa Ibom State v. Powercom Ltd (2005);21 Jallo v. Military Governor of Kano State & Anor (1991), amongst others.22
8.2 It may also serve as a wake-up call to enact laws that make government employees liable jointly and severally for their negligence and/or actions that may occasion heavy judgment costs against their employer, i.e., the government. This would immensely reduce the monetary burden on the government when civil/public servants (including law enforcement agencies) know that they, too, can be held liable for their actions and inactions.
8.3 A serious-minded MDA worth its salt would likely take a cue from this dissenting judgment and now begin to actively consult its legal departments for sound legal advice before embarking on any significant action(s) or project(s), to avoid incurring cost against the government.
Footnotes
1. Some ways a successful litigant can enforce a Court's judgment include: issuing a writ of fieri facias (fifa), a charging order, a writ of sequestration, an order of committal on a judgment debtor's summons, or initiating a garnishee proceeding.
2. A garnishee proceeding is a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of the debtor's property in the hands of a third party. This procedure is governed by several pieces of legislation including the Sherrif and Civil Processes Act (S & CPA), 1945 and the Judgment (Enforcement) Rules (JERs) under the Act, the Rules of various High Courts, the Federal High Court and the National Industrial Court Rules etc.
3. LPELR-80220(SC); Appeal No. SC/CV/268/2021.
4. Section 6, Cap S6, LFN 2004.
5. Ibid.
6. Ibid.
7. CBN v. Interstella Communications Ltd & Ors (2017) LPELR-43940(SC).
8. CBN v. Inalegwu Frankline Ochife & 3 Ors (2025), at p. 58 of Helene Ogunwunmiju JSC's judgment.
9. Supra, (n5).
10. (2021) LPELR 55800 (CA), at p. 13. Cf: CBN v. Yisa Bi-Star Ltd & Ors (2023) LPELR-59960(CA).
11. LPELR-80220(SC).
12. In a majority Decision of 4/1 of the Panel consisting of JJ. John Inyang Okoro; Adamu Jauro; Moore Aseimo Abraham Adumien; and Habeeb Adewale Oluwamuyiwa Abiru who delivered the Leading Judgment with Helen Moronkeji Ogunwumiju dissenting.
13. Section 6, Cap. S6, LFN 2004.
14. The views expressed was in fact akin to Denning LJ's powerful dissenting judgment in CANDLER v CRANE, CHRISTMAS & CO. [1951] 1 All E.R. 426 – 450, on the point that a duty of care arose in tort for an accountant who made negligent statements; a dissenting judgment the House of Lords upheld in HEDLEY BYRNE & CO V HELLER & PARTNERS [1963] 2 All ER 575 – 618.
15. Cap. 23 LFN 2004.
16. Cap. 62 LFN 2004.
17. Ibid (n5).
18. See the corresponding provision in section 287 of the 1999 Constitution.
19. Ibid (n5).
20. (2017) LPELR-43940(SC) ALT; (2018) 7 NWLR (Pt. 1618) 294.
21. ALL FWLR (Pt. 246) PG.1366-1372.
22. (1991) 5 NWLR (Pt. 194).
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
