In Garnishee proceeding, securing the consent of the Attorney General amongst lawyers and litigants for enforcement of monetary judgment in the custody of a public officer has become a mirage which panacea lies in the prerogative order of mandamus.
The administration of justice, both criminal and civil, grinds rather too slow in Nigeria. As a matter of fact, that a party has won a matter in court does not signal the end of the judicial process. It is thus not advisable for the judgment creditor or the victor to go to sleep after winning a case. Obtaining a judgment in one’s favour is just the beginning of the whole process of enforcement of the judgment.
One of the ways of enforcing judgment is the garnishee proceedings which prescribed in Sections 83 to 92 of the Sheriffs and Civil Process Act. See Azubuike v. Diamond Bank (2014) 3 NWLR (Pt.1394) 116 @ 127 Para. C – E, Ratio 2
Garnishee proceeding is a judicial process of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party known as the ‘Garnishee’ (usually a bank), is attached or seized by a judgment creditor, in satisfaction of a judgment sum or debt. By its nature, Garnishee proceeding is “sui generis”, and different from other Court proceedings, although it flows from the judgment that pronounced the debt.
Garnishee order nisi directs the Garnishee to appear in court on a specified date to show cause why an order should not be made upon him for the payment to the judgment creditor of the amount of debt owed by the judgment debtor. The extant laws regulating Garnishee proceedings are the Rules of Courts, case laws and also the Sheriff and Civil Process Act (SCPA).
Enforcement of Monetary Judgment vide Garnishee Proceedings against State entities especially monies considered to be in custody of a Public Officer has been a mirage; leaving Judgment Creditors in helpless situation after the rigors of obtaining judgment usually through a feisty contested and protracted litigation.
The pre-condition provided under Section 84 of the SCPA originated from the Common Law. The General Common Law position was to protect the state, in the sense that “the King does no wrong” which is expressed in the Latin Maxim, “Rex non protest pecarre”. The trend inherent in that principle was to allow no execution of judgments against the state.
It was also the law under that principle that the state could not be sued in tort. Courts were at that time regarded as the King’s. Naturally, judgment obtained by an individual could not be enforced against the King. Clearly the crown enjoyed immunity from legal actions and could not be implicated in its own court for tortious acts, by its servants.
In 1958, the principle of Rex non protest pecarre” was trans-located into Nigeria by virtue of Section 45(1) of the Interpretation Act, Cap 89, LFN 1958. Ironically the principle is still the law in Nigeria even though it had been abolished in England by the promulgation of the Crown Proceedings Act, 1947.
The principle of State immunity from tortious liability was codified to be part of Nigeria law by virtue of the Petition of Rights Act, Cap 149 as amended in 1964. This explains how the infamous common law principle has prevailed.
The codified common law principle protects the state to the extent that individuals cannot enforce judgment against the state without the consent of the Attorney General.
Section 84(1) of the SCPA requires the minister to give his consent and same be attached to the judgment creditors application for an order nisi, mandamus will therefore lie to compel the minister to act. See Halsbury’s Law of England, 4th Edition, page 250 @ para.146. Section 84(1) of the SCPA Cap S6 2004 provides thus:
“Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his capacity or in custodial 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 custodial legis, as the case may be “
The appropriate officer under this context is the Attorney General of the Federation or that of the State as the case may be. This provision has been described as a pre-condition, which must first be fulfilled before the Order Nisi, that is sought ex parte is acceded to. See Central Bank of Nigeria v. James Ejembi Okefe Citation: (2015) LPELR-24825(CA)
It has been explained that the rationale for the provision for prior consent of the Attorney General before a court can validly issue a garnishee order nisi against funds in the hands of a public officer is to ensure that monies that have been voted by the House of Assembly of a State for a specific purpose in the Appropriation Bill presented to that House and approved in the budget for the year for appropriation does not end up being the subject of execution for other unapproved purposes under the SCPA”.
Section 84(1) of the SCPA Cap S6 2004 has indeed posed a clog in the wheel of Enforcing Money Judgments against the government or its agencies, particularly with the indiscretion exhibited by public officers in granting consent to judgment creditor.
This article attempts to proffer alternative legal avenue for a Judgment Creditor to successfully compel the Attorney General of the Federation or that of the State as the case may be to give consent to the Judgment Creditor to enable it successfully apply to the trial court for order nisi to commence its garnishee proceedings against the garnishee in order to reap the fruit of it judgment.
The prerogative order of mandamus is well fitted as a panacea for the difficulty encountered in garnishee proceeding to enforce monetary judgment in the custody of public officers. It will assist in tackling the abuse and indiscretion exhibited by public officers in granting consent to judgment creditor, which has frustrated judgment creditors from reaping the fruit of their judgment.
The legal requirement for the consent of the Attorney General to be obtained before a judgment creditor can bring an ex-parte application for court to issue a garnishee order nisi against funds in the hands of a public officer is an administrative act and as such discretionary.
Such discretion empowers the public officer to do what he ought to do in every circumstance. It does not empower the public officer to act indiscriminately merely because he so desires. In other words, he must, by use of his reason, ascertain and direct the course which reason directs. He must act reasonably. See Chief D.A. Eboreime v. Mr. B.S. Arumeme Citation: (1977) LPELR-12812(CA)
It is trite, that where power is vested in a body to do certain things, there is prima facie discretion on the part of that body to do so. Where, however, as in this case, there is power to act ministerially, there is a discretion, it is a discretion to act one way or the other; in such a case there is a duty to exercise the discretion.
The law is also trite that the Attorney-General of the Federation or the State has a duty to ensure that the Federal or State Governments pay their lawful debts.
Furthermore, the Attorney-General can no longer fold his arms for the judgment creditors to write him soliciting for his consent before he can enforce the judgment given in his favour. Ogundere JCA has this to say in the Case of Jallo vs. Military Governor of Kano State a. Anor (1991) 5 NWLR (part 194) pg 154/764.
It is crystal clear from the provision of section 84(1) of the SCPA Cap S6 2004 that government officials have the duty of exercising discretion in giving consent to judgment creditors to enforce monetary judgments against the government.
Experience has shown that this discretion imposed by the statute has indeed been largely abused by government agents. The inactions of the government agents have indeed posed a huge clog in the way of those seeking to enforce money judgments against the government or its agencies thereby denying judgment creditors the fruit of their judgment.
It is of course, of paramount importance in any legal system that the rights conferred on natural or artificial persons by a law or order of a competent court can be enforced by way of the provision of meaningful remedy. Accordingly, the remedy apposite for failure to exercise a statutory discretion when occasion has arisen is the prerogative order of mandamus, which compels performance of statutory duty.
It is well known that the principal purpose of mandamus is to remedy defects of justice or failure of justice; therefore, it ought to be used in occasions where the law has established no specific remedy.
It noteworthy to state that Wikipedia defined Mandamus as a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from doing), and which is in the nature of public duty, and in certain cases one of a statutory duty.
More so, lf the duty is of judicial, quasi-judicial nature, the order will issue only where there has been a refusal to perform that duty in any event, but not where it was performed one way in preference to another or in an alternative manner.
If, however, the duty is of a ministerial character the order of mandamus will issue to compel the specific act to be done in the manner which appears to the Court to be lawful. See Muhammed Mubarak Ali v. Central Bank of Nigeria & Ors Citation: (2016) LPELR-41611(CA)
What is more, the duty in the instant case is judicial and also of a ministerial character and the order of mandamus can be issued to compel the specific act to be done in the manner which appears to the court to be lawful. (See John Shortt: on Informations, Mandamus and Prohibitions (1888 Edition) page 276 at paragraph 256.)
It is safe to conclude that the difficulty in obtaining the consent of the Attorney General of the Federation or State, which is a pre-condition for Garnishee Order in respect of monies in the custody a public officer, can be tackled by instituting a new action by way of an application for mandamus compelling the attorney general of the federation or state to give the required consent.
The challenge is further alleviated by Section 6(6) (b) of the 1999 Constitution which provides that:
Sections 6(6) provides that: 6 (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
It is noteworthy that trend of heavy reliance on the principle of State immunity as codified by the Petition of Rights Act, Cap 149 as amended in 1964, persisted till the coming into effect of the 1979 Constitution. Before then, all the judicial authorities refused to enforce any decision of the High Court against the State.
The position however changed with Section 6(6) (b) of the 1979 Constitution under which it was held that the provisions of the Petition of Right Act, to the extent that it purports to prevent an aggrieved party from taking direct court action against the State, is in grave conflict with Section 6(6) (b) of the Constitution and to the extent of its inconsistency is null and void.
The implication is that garnishee proceedings can be instituted against the government. See Ransome-Kuti v. Attorney General of the Federation (1985) 2 NWLR (Pt. 6) 211. Section 6(6) (b) of the 1999 Constitution is similar to Section 6(6) (b) of the 1979 Constitution, therefore the decision in Ransome-Kuti v. Attorney General of the Federation (1985) 2 NWLR (Pt. 6) 211 equally applies to the 1999 Constitution.
Having experimented on the provision of Section 84 of the Act for many years, and having seen the challenges usually encountered by judgment creditors, there is the need for review of the said provision to enable us arrive at the conclusion whether the provision is of any utilitarian value to the economy of Nigeria or not. More so, the Petitions of rights law under which citizens cannot institute actions in the law court without first petitioning the attorney-general of the state has been abolished in Britain as far back as 1947.
There is also the need to review this section so as to discover whether its provision is not capable of discouraging foreign direct investments in Nigeria in the sense that investors become scared of how they will recover judgment debts validly granted them by the court in the face of difficulties usually encountered in obtaining consent from the Attorney General, who as a functionary of Government will most likely refuse the consent with or without reasons.
Above all, lawyers having pending challenges of obtaining the consent of the Attorney General before commencement of garnishee proceedings against government should embrace the prerogative order of mandamus which is an established legal tool to remedy defects of justice or failure of justice.
Frank is an Associate and a Litigation lawyer with keen interest in Human Rights Advocacy and Public interest Litigation. His advocacy practice includes judicial reforms and review, insolvency disputes and real estate litigation.