It has always been the practice that upon the delivery of a
judgement, the judgement creditor takes the steps necessary in
enforcing the judgement of court without any recourse to the
judgement debtor. In other words, at the conclusion of a case, the
successful party ordinarily should be allowed, without much
ado/delay, to reap the fruits or benefits of the judgement, without
having to go to the judgement debtor.
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:
- 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.
- 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.
It has always been the practice that upon the delivery of a
judgement, the judgement creditor takes the steps necessary in
enforcing the judgement of court without any recourse to the
judgement debtor. In other words, at the conclusion of a case, the
successful party ordinarily should be allowed, without much
ado/delay, to reap the fruits or benefits of the judgement, without
having to go to the judgement debtor.
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:
- 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.
- 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.
Read more https://www.nairalaw.com/enforcement-of-judgments-against-governments-cause-of-executive-rascality/