By Chief Mike A. A. Ozekhome, SAN, OFR, FCIArb, LL.M, Ph.D, LL.D*

A Text Of Presentation By Chief Mike A. A. Ozekhome 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

INTRODUCTION

The frustration experienced by all, especially the most well-heeled judgment–creditors in reaping the fruits of verdicts of Nigerian courts is as real as it is worrisome. Indeed, it is no exaggeration to say that in many instances, their experience is at best a pyrrhic victory – achieved at too enormous a cost. These frustrations termed “institutional bottlenecks in the enforcement of judgments in Nigeria”, by Ayenakin, Kolade-Faseyi and Akindejoye include “the compromising attitude of court officers who frustrate judgment enforcements by giving information to judgment-debtors and by deliberately impeding the course of enforcement through administrative complexities. In practice, there have been instances in which court officials will inform judgment-debtors of planned execution and the judgment-debtor will hide or conceal their properties”.

THE CHALLENGES IN EXECUTING COURT JUDGMENTS

These observations were echoed by the Nation Newspaper, its in story published on the 12th day of April, 2022; titled: “Unending Judgment Enforcement Troubles”. Amongst the obstacles to executing judgments identified by the paper are what it calls “the cost of executing a judgment, coupled with the problem of corruption among court officials.” A judgment-creditor is usually required to provide funds for the successful execution of the judgment given in his or her favour. The judgment-creditor is expected to pay certain prescribed fees to the court’s registry and provide logistic support to the Sheriffs and the Police to enable them effect a successful execution. The Sheriffs and Police officers often take advantage of the judgment sum or value of property to be attached and charge unnecessarily exorbitant fees to carry out their lawful responsibilities.

In some instances, court Sheriffs easily informed judgment-debtors of pending executions and the former either quickly removed the property from the jurisdiction, or ran to the court with an application for stay of execution to be levied by the judgment-creditor.

In cases where the attached property is to be auctioned, the auctioneer is expected to pay the gross proceeds into the court, including the payment for the Sheriffs, bailiffs, appraisers and expenses of sale to the auctioneer. In reality, after all the payments made to the identified officers of the court, the amount left for the judgment-creditor is often insufficient to satisfy the judgment debt. It is at times so paltry that the victory becomes pyrrhic. Rather than reap the fruits of his victory, the winner instead, reaps sorrow, tears, pains and pangs.

This has, understandably, tasked policy-makers at all levels in the Justice Sector delivery system, to find ways of untying the Gordian knot as it were.

Regrettably, these challenges have defied all solutions, even as the only beneficiaries from the malaise appear to be the judgment executioners themselves, i.e., from court Bailiffs, Registrars, clerks to Policemen and pointers.

CHANGING THE NARRATIVE

So, the theme of this gathering couldn’t be apter, with its emphasis on praxis, rather than precepts and the law. Yet, it would be supremely ironical that the very stakeholders in the Justice Sector would be seen to spurn the law to which they are beholden – and, indeed, sworn to uphold – in tackling a systemic challenge.

This should be avoided, of course, lest we be guilty of adopting the Michiavellian mantra of the end justifying the means. Accordingly, what is called for is a happy marriage of the two: a workable, enduring solution which is firmly rooted in – and not at odds with – the law as it is (the lex lata, rather than the delege ferenda).

RECMMENDED PANACEA

PRIVATIZATION OF EXECUTION OF COURT JUDGMENTS

Obviously, the best approach is to think out of the box; nay, think without the box at all. In this regard, I believe that a relevant question is whether, in the light of repeated failures of traditional structures and institutions (courts, their support staff and law enforcement agencies), it is too radical and far-fetched to consider privatizing execution of judgments – with the Police still playing more or less the same roles, while Bailiff Units are disbanded. This will, admittedly, require a paradigm shift which will, in turn, entail legislative (if not constitutional) amendment. But, I believe it is worth exploring.

SYMBIOTIC ENGAGEMENT WITH PRIVATE SECTOR PLAYERS

To achieve it will require robust engagement with and, the buy-in of, private sector players, since they will be the drivers of the new regime (a brave new world!) that will displace the present chaotic and ineffective order. This solution does not underestimate the depth and breadth of the predictable institutional and intellectual pushback or resistance from traditional beneficiaries of the rotten system. This is always a factor to contend with, but the recommended new system embraces them with symbiotic engagement. Hence the emphasis on an interface. But, this solution – any solution for that matter – deserves no less emphasis. Is there a precedent anywhere in the world for this private enforcement of the will of the judicial arm of a Sovereign State?

PERCEIVED OBSTACLES

Beyond purely legal or constitutional issues (which, as pointed out, can always be addressed with the requisite amendments), are there legitimate policy, cultural, social (or even religious) concerns over such a drastic change in the status quo? Frankly speaking, beyond the entrenched (seemingly vested) selfish interests of those who benefit from the present systemic rot (whom we shall dignify with anonymity!), it is hard to imagine anyone opposing any suggestion aimed at making it operate more efficiently and cost-effectively for those for whom it was designed in the first place: the long-suffering judgment-creditors.

PAST EXPERIENCE

So, the answer to the poser of the existence of precedent for this suggestion, does appear to be in the negative. However, in the context of the larger society, the model of a Private-Public Partnership for executing public contracts has existed in Nigeria for decades. There are even institutional frameworks in place in the form of the Bureau for Public Enterprises and the Infrastructure Concession Regulatory Agency. The question is: are they appropriate or feasible in the Justice Sector? My answer is: why not – as long as it is restricted to only enforcement, as opposed to the adjudicatory aspect of the Judiciary. No one is certainly advocating that justice should be sold to the highest bidder or that an already weak judiciary should be further weakened (thank you, Alexander Hamilton in your Federalist Paper No. 75; to the effect that the judiciary is the weakest of the three arms of government, because it possesses neither purse, nor sword to enforce its judgment!) No. rather, once a court has delivered a final judgment in respect of which there is no valid appeal or order of stay of execution, its enforcement becomes purely administrative. Surely, that explains why – under the present system – it is under the management and control of the Deputy Sheriff, and, not the Judge who rendered the verdict, which is the subject of enforcement – at least, not directly

HOW PRIVATIZATION OF EXECUTION OF JUDGMENTS WORKS

My proposal is for this Officer of the State (i.e., the Deputy Sheriff), to hand over such duties to an efficient and effective Private Sector, profit-driven operator, to be selected by the judgment-creditor directly – through whatever process the enabling law eventually prescribes – who will thus be suitably incentivised to deliver the desired outcomes at minimal cost. The merits of this option are obvious: it is time-lined, effective, transparent, accountable and result-oriented. By changing the process from one which is hall-marked by detestable Civil Service bureaucracy or red-tapism, to a new template completely under the control of the judgment-creditor, he or she will have no one to blame for service failure or under-performance. It will be down to his or her choice of ‘Enforcer’. It thus becomes a very private choice – a matter of contract – based purely on bargaining power. Once again, I understand that there will be genuine concerns about whether the usual Nigerian factor will not ensure that a grossly distorted reality is foisted on the hapless public in the implementation of such a well-intentioned idea. Certainly no one wants to replace one ‘monster’ with something even worse.

That is why to avoid throwing out the baby with the bath-water, it is recommended that such Enforcement Contracts should be formally registered with the Deputy Sheriff – in addition to containing a mandatory clause that private enforcers are liable to the court in cases of negligence, undesired, shoddy or sub-optimal execution. This sanction presently exists under the Judgments (Enforcement) Rules, albeit only in instances of wrongful execution. It has, obviously, proved to be grossly inadequate either to incentive Bailiffs or to discourage inefficient/ineffective executions of judgments by them.

With the perennial tales of woe told by judgment-creditors who remain stuck in the worst possible scenarios: their hopes of finally achieving succor following prolonged litigation is often dashed to smithereens by the shenanigans of less-than- transparent Bailiffs, court officials and their Police collaborators.

SECTION 84 OF THE SHERIFFS AND CIVIL PROCESS ACT AS AN ALBATROSS IN ENFORCING PUBLIC JUDGMENTS

All that has been said above is generally applicable to only non-public judgment debts. As regards those which are owed by a public institution or the State, Section 84 of the Sheriffs and Civil Process Act, presents a formidable obstacle to their enforcement with its prescription of the prior consent of the Attorneys-General of either the Federal or a State, being first obtained before such judgments can be enforced through attachment of the relevant funds, or either property which belong to the public officer. There is a considerable welter of case law on this issue; so I will not belabour the point. I will however, cite only one which I think discusses virtually all the rest. It is UNITED BANK FOR AFRICA vs. ACCESS BANK (2018) LPELR-44062 (CA). There, the court considered the effect of failure to obtain consent of the Attorney-General before obtaining a garnishee order in respect of funds domiciled in the judgment-debtor’s accounts (Bakura Local Government Council of Zamfara State) with two commercial banks. The intermediate court held that, in the absence of the consent of the Attorney-General of Zamfara State pursuant to Section 84(1) of the S& CPA, the funds involved in this particular case were immune from attachment in satisfaction of a debt entered against the local government by a Zamfara State High Court. The court categorically held that the absence of that consent rendered the entire garnishee proceedings (which had all but been concluded), a nullity. The court went ahead to lay to rest the nagging question of the relevant test for the requirement of the Attorney-General’s consent, as between the ownership of the funds or the person in whose custody the funds are kept. The court opted for the former, (that is the public body that owns the funds) holding that the latter (the custodian of the funds) was a false test.

IS SECTION 84 OF S& CPA VALID?

Beyond this, however, I believe that a more profound issue is the validity, vel non, of this provision. Simply put, the question is whether Section 84 of the Sheriffs and Civil Process Act is valid. To my mind, this is the question which all previous decisions on the intendment and scope of Section 84(1) of the Sheriffs and Civil Process Act (S & CPA) – particularly in relation to the powers of the Attorneys-General of the Federation and of the States – missed, vis-à-vis relevant constitutional provisions which I believe impinge on the validity of that provision.

SECTION 84 OF THE S AND CPA VS ITEM 50 OF THE EXCLUSIVE LEGISLATIVE LIST OF THE CONSTITUTION

To start with, by virtue of Item 50 of the Exclusive Legislative List of the 1999 Constitution, the National Assembly may only legislate in respect of “public debts of the Federation”. Whilst the Constitution is silent on the meaning of “public debt”, Section 318(1) thereof, however, defines “Federation” as “the Federal Republic of Nigeria”. I believe that this, prima facie, suggests that the National Assembly is competent to legislate on all public debts – whether incurred by the Federal or State Governments. However, to the extent that Sections 4(1) and 4(6) of the Constitution divides legislative powers between the National and State Houses of Assembly, Nigeria is clearly a Federation. Indeed, this much is explicitly stated in Section 2(2) of the Constitution.

SECTION 84 OF THE S AND CPA VS. THE OFFICE OF THE ATTORNEY-GENERAL

The doctrine of separation of powers (ably propounded in 1748 by the great French philosopher, Baron de Montesquieu, precludes the National Assembly from unilaterally conferring powers or imposing duties on a State functionary – such as the Attorney-General of the State: see ATT-GEN. OF BENDEL vs. ATT-GEN. OF THE FED. (1983) NSCC 181; and ATT-GEN OF OGUN STATE vs. ATT-GEN OF THE FED (1982) 3 NCLR 166. This is unless, of course, the Constitution expressly makes such a provision, either directly or by necessary implication or inference.

Apart from Item 50 of the Exclusive Legislative List of the Constitution as aforesaid, the other relevant constitutional provisions, vis-a-vis Section 84(1) of S&CPA, in my view, are Sections 150, 174, 195 and 211 thereof, which provide for the office and functions of the Attorney-General of the Federation and that of the States, respectively. It is instructive that, even though, under the Constitution, the respective Attorneys-General are designated “Chief Law Officers” of the Federation and the States as the case may be, apart from the institution, taking over, continuance and discontinuance of criminal prosecutions, the Constitution is completely silent on their functions or powers in respect of civil proceedings – including granting leave/consent for the attachment of public funds in satisfaction of court judgments. Does the expresso unius est exclusio alterius principle of statutory Interpretation apply to deny them such roles – thus invalidating Section 84 of the S & CPA? That is the question to be tackled.

This poser is particularly pertinent given that the judicial rationale for the said provision of the S & CPA – namely, the need to safeguard public funds appropriated for specific purposes in a budget, inter alia – ought to be the function, under the Constitution, of either the President or State Governors, who prepared the budgets in the first place. See Sections 80, 81, 120 and 121, respectively, of the Constitution.

SECTION 84 OF THE S AND CPA VS APPROPRIATION ACTS

Given the constitutional ban on withdrawing public funds without the backing of Appropriation Acts/Laws (otherwise called ‘Budgets’), vide Sections 80 and 120 of the Constitution, is the power conferred on Federal and State Attorneys-General by Section 84 of the S & CPA to authorize payment of money judgments against the Federal or State Governments – regardless of whether such debts are captured in relevant Appropriation Acts/Laws – valid or not? More importantly, given the non-inclusion of that power among the constitutional functions of Attorneys-General, should that authority not be challenged as simply ultra vires the National Assembly? That is also the question.

SECTION 84 OF THE S AND CPA VS THE RIGHT TO EGUAL PROTECTION BEFORE THE LAW

Section 84 of the S&CPA is the fact that it appears to violate the right to equal protection of the law which is guaranteed under Article 3(2) of the African Charter on Human & People’s Rights as enshrined in the African Charter on Human and People’s Rights (Ratification and Enforcement) Act, 1981. The supremacy of this law over others except the Constitution, was recognized by the Court of Appeal in IGP vs ANPP (2007) 18 NWLR pt.1066 page 457 @ 500C, per Adekeye, JCA (as he then was). The Supreme Court also toed the same line in ABACHA vs. FAWEHINMI (2000) 6 NWLR Pt. 660 pg. 228, where the court held that the Charter will prevail when there is conflict between it and any other domestic law. The court however held that the Charter is not above the Constitution neither does it limit the power of the National Assembly to repeal it. The Court of Appeal fully examined the scope of this right in N.N.P.C vs FAWEHINMI (1998)7 NWLR pt.559 page 598 @ 616. Before looking into that decision in greater detail, let us pause to refer to the definition of the right of equal protection in BLACK’S LAW DICTIONARY, 8th edition, at page 577:

“equal protection of the laws demands that laws will only be legitimate if they can be described as just and equal . . . equal protection guarantees that the government must treat a person or class of persons the same as it treats other persons or classes in like circumstances . . . equal protection means a legislation that discriminates must have a rational basis for doing so. And if the legislation affects a fundamental right or involves a suspect classification, it is unconstitutional unless it can withstand strict scrutiny”

In making this humble submission, it is important to stress that the right to equal protection of the law does not apply across the board to all persons. No. it is only applicable to persons whom the law regards as being similarly circumstanced. The Court of Appeal emphasized this point in NNPC vs FAWEHINMI (supra), where it held, per Ayoola, JCA (as he then was), at page 615, thus: “Although Article 3 of the Charter appears general and absolute in its terms, the rights of equal protection of the law which it recognizes must be understood as ‘equality among equals’ . . . The guiding principle is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed . . . what it forbids is discrimination between persons who are similarly in similar circumstances. It does not forbid different treatment of unequals. The rule rather is that ‘like should be treated alike and that unlike should be differently.”

It is self-evident that ALL judgment-debtors are “similarly circumstanced”. I humbly posit therefore, that by insulating property or judgment debt under the control of a public officer from execution (without the prior consent of the Attorney-General of either the Federation or of a State), section 84 of the S&CPA has implicitly conferred an unmerited privilege on such property which is neither warranted nor deserved under our extant laws. To the extent that such privilege is only unique among judgment-debtors, it amounts to a flagrant violation of the right to equal protection under the law, for some judgment debts to be specially protected. I believe that these questions should prompt deep reflection in appropriate quarters for the purpose of revisiting the entire issue.

SECTION 84 OF S & CP ACT VS SECTION 287 OF THE CFRN, 1999

This is one of the most frequently raised questions in relation to the validity of section 84 of the S& CPA. It has engaged the attention of the Court of Appeal on at least three different occasions. Before analyzing those decisions, however, it is pertinent to understand that provisions of section 287 of the Constitution. It simply provides that the judgments of all courts established under the Constitution (including the Supreme Court, Court of Appeal, Federal High Court, National Industrial Court, State and FCT High Courts, etc) “shall be enforced in any part of the Federation by all authorities and persons, and by all other courts with subordinate jurisdiction” to a court higher in the hierarchy.

The validity of section 84 of the S & CPA vis-à-vis section 287 of the 1999 Constitution was considered by the Court of Appeal in ONJEWU vs. KOGI STATE MINISTRY OF COMMERCE & INDUSTRY (2003) 10 NWLR Pt. 827 pg. 40; GOVERNMENT OF AKWA IBOM STATE vs. POWERCOM NIG. LTD (2004) 6 NWLR Pt. 868 pg. 202 and CBN vs. HYDO AIR PROPERTY LTD. (2014) NGCA 29. In all of them, the court categorically held that section 84 of the S& CPA was not inconsistent with section 287 of the Constitution. Given the state of the law as narrated above, the only question that remains is whether the other grounds which we previously canvassed for impugning section 84 of the S& CPA vis-à-vis the Constitution and the African Charter were urged on the courts in those cases and, if so, whether they were pronounced upon.

To the best of my knowledge, the answer to both questions is negative. This means that all those decisions were given per incuriam: BUHARI vs. INEC (2008) 19 NWLR Pt. 1120 pg. 246 @ 372. To that extent, it remains to be seen how either the Court of Appeal or the Supreme Court will decide the issue if and when it is confronted with it. In my own humble opinion, section 84 of the S and CPA appears inconsistent with section 287 of the CFRN, 1999, as amended, as it seeks to water down its efficacy, application and plentitudes. I will recommend to the appellate courts to strike it down when it does rear its ugly head again in future cases especially on those grounds already canvassed in this paper.

CONCLUSION

The search for a Justice Sector that works for those who seek redress for their grievances must not remain elusive in the vast majority of cases. The panaceas proffered above will hopefully add to the curative tool-box and the range of options for achieving desired outcomes beyond the stage of merely obtaining bare judgment. Things cannot simply continue in the way they have been since time immemorial. Claudius in Julius Caesar, by Williams Shakespeare (Act 4, Scene 3), alluded to the well known proverb by the ancient Greek physician, Hippocrates (the father of Medicine), that “a desperate disease must have a desperate cure”). It was Albert Einsten who most penetratingly put it: “we cannot solve our problems with the same thinking we used when we created them”. They have to and, THEY MUST CHANGE. This is the challenge that confronts everyone of us involved in the Justice Sector which we can ill-afford to allow to continue to asail or overwhelm us. FAILURE IS NOT AN OPTION.

Thank you.