– ENFORCEMENT OF AWARD OF COMPENSATIONS IN FUNDAMENTAL RIGHTS ACTIONS IN NIGERIA: Challenges Posed by Treasury Single Account

 

Introduction

The Constitution of the Federal Republic of Nigeria, 1999 (as amended) makes provision for further reliefs with respect to infringement of right to personal liberty of any person in Nigeria. Thus, in addition to the general orders and further directions that the court is empowered to make for redress of infringement of rights under section 46 of the Constitution, section 35(6) is to the effect that any person unlawfully arrested or detained shall be entitled to compensation and public apology from appropriate authority or person.

Suffice it to say that when any law enforcement agency – the Police Force, the Nigeria Army, the Economic and Financial Crime Commission, etc. is declared by the court to have acted in contravention of the right to personal liberty of any person and compensation is thereby awarded, the applicant simply commences garnishee proceedings against the errant agency. This was easy to go by before the advent of Treasury Single Account (TSA) since each government agency maintained various accounts in choice commercial banks in Nigeria.

The introduction of TSA which came to meet the relics of colonial legislations that still bestride the gamut of our law in Nigeria has posed some challenges to execution of money judgments against Ministries, Departments and Agencies (MDA) of the Federal Government generally. Although the aim of TSA, inter alia, is to consolidate the Federal Government’s cash resources and to enhance the management of the cash flow, this is not without some side effects on the other hand.

The Nature of Garnishee Proceedings

Garnishee Proceedings is one of the procedures for execution of judgment. It is specifically employed when the judgment obtained is money judgment. The aim is to seek the Order of court to attach the money of the Judgment Debtor in the custody of a third party, usually Deposit Money Banks (DMBs). In fundamental rights actions, when compensation is awarded against any Law Enforcement Agency of the Federal Government, the sum awarded is called Judgment Debt, the successful Applicant becomes the Judgment Creditor while the Agency is thence referred to as the Judgment Debtor. A third party within the jurisdiction of the court with whom the Judgment Creditor has money that could be attached to satisfy the judgment debt is called the Garnishee, while the requisite proceedings are known as Garnishee Proceedings. The proceedings come in two stages, namely- Order Nisi and Order Absolute.

Usually, when compensation is awarded as aforesaid and the Judgement Creditor fails to honour the Order for the payment of judgment debt within the time allowed for appeal, ex parte application is made to court by the Judgment Creditor, for an Order Nisi. When this is granted, the Order binds the money of the Judgment Creditor in the custody of the Garnishee who is directed by the Order to ‘Show Cause’ why the Order should not be made Absolute.

The garnishee must thence refrain from dealing in any manner with the money until he has either paid the attached judgment sum into the court or show cause by filing an Affidavit disputing liability as required by law. Where the judgment debt is paid into the court before the return date, the Garnishee will have to file an Affidavit of Compliance intimating the court of the step taken, in which case he would be discharged from the proceedings.

On the other hand, where cause is shown disputing liability and the court believes that, the Garnishee should not be made liable to pay the judgment debt, the Garnishee may be discharged from the proceedings. Or, the Garnishee may show cause intimating the court of lesser amount he holds for the Judgment Debtor than the judgment sum sought to be attached in which case the court will have to engage its discretion on whether to discharge the Garnishee or make the Order Absolute with respect to such amount the Garnishee declares to hold for the Judgment Debtor. Otherwise, if he fails to dispute the Order by showing cause, the Order would be made Absolute. Thence, the garnishee is expected to pay the judgement debt to the Judgment Creditor in compliance with the Order Absolute. Again, if he fails, the Judgment Creditor may take out a writ of fifa and levy execution on the property of the Garnishee or take contempt proceedings by the issuance of Form 48 and Form 49 respectively for the Garnishee to be committed to prison.

The foregoing could be simply followed before the advent of TSA, DMBs with whom the Agencies held various accounts as the Garnishees and the Applicant would be made to benefit from the yielding of the judgment in due course, but the operation of TSA has created a clog on the process.

The Incidence and Consequence of Treasury Single Account

Treasury Single Account (TSA) is a unified public accounting system by which all government receipts, revenues and incomes are collected into one single account to be maintained and managed by the Central Bank. The operation of TSA is in compliance with the provision of Section 80 (1) of the Constitution (supra). The provision requires, inter alia, that all revenues or other moneys raised or received by the Federation are to be paid into and form one Consolidated Revenue Fund of the Federation. Until recently, successive governments allowed the MDA to operate numerous accounts with various DMBs in Nigeria for the collection and spending of public funds. With the coming into effect of TSA, the MDA are expected to remit their revenue collections into TSA through the DMBs who merely act as collection agents. Remita, an e-collection technology platform was deployed by the Federal Government to support the collection and remittance of all collections into this consolidated account domiciled with the Central Bank of Nigeria (CBN).

Noteworthy, Nigerian TSA is operated mostly on a Zero Balance Account (ZBA) which implies that all monies collected by each DMB will have to be remitted to the Consolidated Revenue Accounts with the CBN at the end of each banking day. In other words, MDA’s accounts with DMB must be zerorized at the end of every banking day by a complete remittance of all revenues collected into the TSA. It follows that no MDA could have a mite in any DMB in Nigeria at any point in time that it (or any third party) could lay claim to. Thus, recourse would have to be made to the CBN for any third-party claim against the MDA.

Requirement for the Consent of the Attorney General

With the advent of TSA as pointed out above, any claim by way of garnishee proceedings in any case where the Law Enforcement Agency is the Judgment Debtor in Nigeria has to be made against the CBN as the Garnishee bank. Whereas under section 84 of the Sheriffs and Civil Process Act Cap S6, LFN, 2004 (hereinafter, SCPA), where money in the custody or under the control of a public officer, in his official capacity, is liable to attachment by garnishee proceedings, the consent of the appropriate officer must first be sought and obtained. The appropriate officer in this provision is the Attorney General of the Federation 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. While in case of money in the custody of a public officer of a state, the appropriate officer is the Attorney General of the State. Where the money is in custodial legis (i.e. custody of the court) the leave of the Court must first be obtained for the Order.

There is a lot of controversies on the applicability and the constitutionality of this provision and on whether the term “public officer” as used in this provision refers to person in law generally, be it natural person or artificial person.

With respect to the second point of controversy, if one were to look back, one would conclude in view of the case of Barclays Bank, D.C.O. v Baderinwa: Re L.E.D.B. (1962) 2 All NLR 731, that the issue had long been settled. In that case, it was held that the term “Public Officer” as used in section 84 of the SCPA is used restrictively to refer to only natural person who holds office in the public service of the Federation or of a State. It follows that MDA (the CBN inclusive) does not qualify as a public officer for the purpose of this section.

Nonetheless, in June 2002, in the case of Onjewu vs Kogi State Ministry of Commerce & Industry & 2 Ors (2003) 10 NWLR (Pt. 827) 40, the Court of Appeal departed from the above position. The Appellant in that case obtained a judgment for the payment of consultancy services rendered to the Judgment Debtor, the Kogi State Ministry of Commerce and Industry for the construction of a permanent Trade Fair Complex at Felele, Lokoja. An Oder Absolute was made by the Lower Court following garnishee proceedings before it. The Court of Appeal treated the Kogi State Ministry of Commerce and Industry as a public officer and held that the consent of the Attorney General of Kogi State must first be sought and obtained before the garnishee proceedings could be validly conducted.

It is beyond argument as held in CBN vs Hydro Air Pty Ltd (2014) 16 NWLR (PT. 1434) 482 that public officers include the officials of the Central Bank of Nigeria. The case of CBN v. Kakuri (2016) LPELR-41468 (CA) was a fundamental rights action wherein the sum of N2,000,000.00 (Two Million Naira) was awarded against the Police as compensation in favour of the Applicant, but the Court of Appeal faulted the garnishee proceedings initiated to attach the money with the CBN. The Court reasoned in clear terms that the CBN as an entity is a public officer within the provision of section 84 of the SCPA. Thus the requisite consent of the Attorney General of the Federation (AGF) must be obtained before garnishee proceedings could be commenced to attach money in its custody. Regrettably, this trend has continued. Recently, the case of CBN vs Eddy Nwabueze & Ors (Appeal No. CA/A/594/2016) was delivered in July 2018, the Court of Appeal declared null and void the Order Absolute made following garnishee proceedings initiated to attach the sum of N25,000,000.00(Twenty-Five Million Naira) granted as compensation for infringement of the fundamental rights of the Judgement Creditors on the ground of absence of the AGF’s consent. This writer represented the CBN in Daroiyo vs IGP, CBN & 18 Ors. (Suit No. FHC/OS/CS/42/2011) where the Applicant commenced the proceedings to garnish the compensation awarded in his favour against the Police in fundamental right action. Following a preliminary objection raised on this point opposing the proceedings, the Judgment Creditor without further ado, moved the court to vacate the Order Nisi against the CBN. To mention but these few, this writer has personally been involved in numerous pending cases in various courts on this issue.

The only exception to the need for requisite consent of the A.G. however is where the A.G. himself has taken part in meetings for the purpose of settlement of the judgment debt or earlier on agreed on the making of part payment of the money to be attached, his consent shall no longer be required. This is so because he would be taken to have impliedly given consent or waived the need to seek his consent on any subsequent proceedings for a garnishee order. See Federal Government of Nigeria vs Insterstella Communications Ltd (2015) 9 NWLR (Pt.1463)1.

Appraisement

It is clear from the foregoing that the provision of section 84 of the SCPA and the perspective of the court thereon have automatically whittled down the intent and purpose of the provision of Section 35(6) of the Constitution with respect to payment of compensation on infringement of right to personal liberty having now been rendered of no useful purpose. This dimension obviously does not augur well of constitutional democracy under which Nigeria claims to operate.  Unfortunately, the constitutionality of this provision was argued in Onjewu vs Kogi State Ministry of Commerce & Industry (supra), but the court’s interpretative perspective ruined the argument.

It is worthy of note that the SCPA was part of the statutes of general application that the colonial masters imported into Nigeria and has been in force since 1^st of June, 1945 without any amendment. The origin of this provision is, of course, traced to the archaic Common Law principle expressed in the Latin maxim, “Rex non potest peccare”, that is to say, “the King can do no wrong”. The unfortunate case of Ransome Kuti vs. Attorney-General of the Federation (1989) 2 NWLR (PART 6) 211 readily comes to mind. The aim of this principle was to protect the King and His realm from the enforcement of judgment in His own court (the King’s Court) because of the canon of state immunity, but the principle had been abolished in England where it originated since 1947 when the Crown Proceedings Act, 1947 was promulgated.

The justification that Nigerian courts still maintained as adumbrated in Onjewu’s case is that the requirement for consent of the AG was a policy designed to prevent embarrassment to the Government. That it is to ensure that moneys that have been appropriated by the legislatures for specific purposes in a given fiscal year in budget do not end up being subject of execution for another unapproved purpose.

Be that as it may, dancing to the tone of the relic of colonialism is no justification to create a clog on the implementation of the provision of section 35(6) of the Constitution which is the grundnorm. It appears the court is not moving towards the growth of democratic principles and constitutionalism in Nigeria. Apart from the position held in the case of Barclays Bank, D.C.O. v Baderinwa: Re L.E.D.B. (supra), in later cases such as El Shaddai Internation Ltd vs Federal Republic of Nigeria (2002) FNLR 395 at pp. 401-402 and Betta Borix (Nig) Ltd vs Ajaokuta Steel Coy. Ltd (2004) Abj L.R. 1 at p. 7, courts had held that section 84 of the SCPA could not stand in view of the provisions of sections 1(3), 4(8), 6(6), 36(1), 287(3) and 315 of the 1999 Constitution (as amended).

In El Shaddai Internation Ltd in particular, the court reasoned that section 84 of the SCPA could not stand in view of the 1979 Constitution as it constituted a diametrical opposition to the principle of separation of powers which was the underlying philosophy of the Constitution. The reason being that the provision indirectly vests the AG with judicial power or a form of control over the exercise of judicial power. By the provision, courts in whom judicial power is vested would be inhibited in the discharge of their constitutional duties since they have to wait for the consent of the AG before they can properly enforce their judgments.

It is worthy of note that the provision requiring the consent of the AG was inserted into Decree 107 of 1993 which amended the 1979 Constitution but when the 1999 Constitution was drafted, the provision was excluded and no longer part of the Constitution. It is instructive to note thereby that the requirement for the consent of the AG is no longer within the contemplation of the extant 1999 Constitution.

In Lord Acton’s expression in 1887, “power tends to corrupt, and absolute power corrupts absolutely. Great men are almost bad men”. This is exactly what this requirement has made the AGs become in Nigeria when it comes to execution of money judgment against the government MDA. This is so because the requirement is always abused by the AGs who unreasonably withhold consent to prevent Judgment Creditor from enforcing a valid and binding judgment against the Government or its MDA. This is against the age-long principle expressed in the Latin maxim that “nemo judex in causa sua” (no one can be a judge in his own cause). While any MDA is a party to a suit, the AG who is part of the MDA is to give consent before judgment can be enforced against the MDA.

As if a mere withholding of consent is not even enough, in December 2008, the AGF issued a circular with Ref. No. SGF/PS/CIR/625/I/143 dated December 23, 2008 to all MDA of the Government, with the instruction that none of them should pay any judgment debt upon service of Garnishee Orders Absolute unless it is established that the consent of the AG had first been obtained pursuant to section 84 of the SCPA. One can see how absolute power is employed to create a vicious circle for Judgment Creditors and the court. This step, of course, will afford the AG a situation of fiat accompli and foist upon the Judgment Creditor and the court a situation of hopelessness. It was quite unfortunate.

During the tenure of Michael Aondoankaa, SAN, Hon. AGF, the Governor of the CBN and a number of officials of the Bank were faced with threats of being committed to prison for contempt of court on failure to comply with garnishee orders. Examples of such cases are Greenbay vs Fed Min of Minerals, Steel & Power & CBN (Suit No. FHC/ABJ/M/03/2007; Appeal No. CA/A/260/2008) and Boniface Iloanya vs CBN (Suit No. FHC/L/CS/366/1998), but the AG insisted yet in conclusion at a meeting held on this cases with the CBN Officials that he would await the decision of the Supreme Court thereon.

Following a change of government that subsequently ensued and Mohammed Adoke, SAN was appointed the AGF in 2010, the new AG understood with the CBN upon reading and considering a letter from the Office of the Legal Adviser of the CBN on the need to comply with Court Orders, garnishee orders in particular. Thus, long-withheld consent in respect of Order Absolute made upon garnishee proceedings in the Office of the AGF was granted in plethora of cases. This singular move averted the outcome of pending contempt proceedings against the Governor of CBN and other Officials of the Bank and the public ridicules that the resultant corporate embarrassment would have caused to the Bank and its Officials.

The commendable acts of Mohammed Adoke, SAN ought to be encouraged and allowed to subsist in a democratic (and in ordinary civilized) society. In Onjewu v. K.S.M.C.I (supra), Muntaka-Coomassie J.C.A (As he then was, at P. 42, Paras. B-G) rightly opined that it is the duty of the Attorney-General of the Federation or the State to ensure that the Federal or State Governments pay their lawful debts. That 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. Also, Ogundere JCA (As he then was) in the Case of Jallo vs. Military Governor of Kano State & Anor (1991) 5 NWLR (part 194) pg 154/764 held that under the dispensation which has also been enshrined in the 1989 Constitution, it ought to be the duty of the Attorney-General, Federal or State to consult quickly with the Minister/Commissioner of Finance or Budget, to provide funds to satisfy judgment debts lawfully obtained against the State. No Attorney General worth his salt should fold his arms and do nothing when the State is a judgment debtor.

Conclusion

It is submitted in conclusion that the provision of section 84 of the SCPA is archaic and against the underlying principles of constitutional democracy hook, line and sinker. Thus, same ought to be expunged from our statute book. As rightly hinted by their Lordships, it is high time the AGs became liberal while this provision subsists and shun any unreasonable withholding of consent that can stampede the exercise of judicial power and the progress of democracy. Over and above, we hope that this issue will soon be attended to by the Supreme Court and the Apex court will do nothing less but declare the provision of section 84 of the SCPA unconstitutional, null and void.

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