Supreme Court To AGF: Approve Payment Of Judgement Debts By Agencies

ABUJA—The Supreme Court has declared that prior consent of the Attorney-General of the Federation must be secured before any legal action to compel the government or its agencies to pay a judgment debt could be initiated.

According to the apex court, Section 84 of the Sheriff and Civil Process Act (S&CPA), made the AGF’s approval a prerequisite for the filing of garnishee processes against government establishments.

A split decision of four-to-one by a five-member panel of the court declined to examine the constitutionality or otherwise of such procedure, even though the dissenting decision declared Section 84 of the S&CPA unconstitutional.

The judgement followed an appeal marked: SC/CV/268/2021, which the Central Bank of Nigeria, CBN, filed to protest a judgement that awarded N50 million against it.

The Abuja Division of the Court of Appeal had on December 4, 2020, upheld a 2018 verdict of the Federal High Court which granted a garnishee order absolute against the CBN, with respect to the N50million judgement debt.

The money was awarded in favour of one Inalegwu Ochife, in a suit he filed against Inspector General of Police, IGP, the Commissioner of Police (FCT), and the officer in charge of the Intelligence Response Team, Special Anti-Robbery Squad, SARS.

In a bid to execute the favourable judgement, Ochife initiated a garnishee proceeding to attach funds from the account of the defendants under the Treasury Single Account, TSA, held in the CBN.

The high court in December 10, 2018, issued a garnishee order directing the CBN to deduct N50million from the alleged accounts of the judgment debtors.

Not happy with the order, the CBN filed an affidavit before the court, house explaining that it could not comply with the directive since it had no accounts in the names of the judgement debtors.

Despite CBN’s claim, the court proceeded to issue a garnishee absolute on January 21, 2019, a decision that led to the appeal.

The Court of Appeal, in its decision on December 4, 2020, dismissed CBN’s appeal and held that since the judgment debtors were government agencies, their funds must be held under the TSA policy.

While reviewing the matter, the Supreme Court, in the majority decision delivered on January 24, with the certified copy obtained by journalists yesterday, vacated the appellate court’s judgement.

However, it faulted the CBN for raising issue about the AGF’s consent, at the Court of Appeal.

Justice Habeeb Abiru, who prepared the lead judgement, held: “In the present case, the appellant (CBN) did not raise that issue of the failure of the first respondent ( Inalegwu Ochife) to obtain the fiat and/or consent of the Attorney General of the Federation (AGF) before commencing the garnishee proceedings either in its affidavit to show cause or in any other process in the trial court.

“The appellant’s affidavit to show cause met the case of the first respondent on the garnishee proceedings on the merits

The appellant had no right to raise the issue on appeal before the lower court for the first time.

“The lower court thus, possessed no jurisdiction to entertain the issue of the failure of the first respondent to obtain the fiat and/or consent of the Attorney General of the Federation before commencing the garnishee proceedings, raised before it (the Appeal Court) by the appellant for the first time and its decision in respect thereof is therefore a nullity,” he added.

Justice Abiru proceeded to strike out the three issues on that subject, formulated by the CBN for the court’s determination.

He voided the appellate court’s decision on the ground that it wrongly categorised the IGP and others police personnel (listed as judgment debtors), as government agencies whose funds are in the TSA domiciled in the CBN.

Other Justices that concurred with the lead judgement were John Okoro, Adamu Jauro and Moore Adumein.

Nevertheless, in her dissenting judgement, Justice Helen Ogunwumiju held that CBN appropriately raised the issue of jurisdiction in relation to the failure of the first respondent to obtain the fiat/ consent of the AGF, before commencing the garnishee proceedings.

Justice Ogunwumiju proceeded to declare the provision of Section 84 of the S&CPA null and void on the grounds that it sought to subject the decision of the court to the review and discretion of the executive arm of government, represented by the AGF.

Relying on the Supreme Court’s judgment in the case of Nigeria Agip Oil Company Ltd vs. Nkweke and another (2016) LPELR-26060 (SC), Justice Ogunwumiju held that where the exercise of power by a person or authority is alleged to have been done outside the provisions of the Constitution or that such exercise is in direct conflict with the spirit of the Constitution, then that exercise of power is said to be unconstitutional.

“There is no doubt that Section 84 of the S&CPA seeks to limit the exercise of the execution of a valid Court judgment. In that case, such an inferior legislation, outside the Constitution is null and void to the extent of its obvious inconsistency with Section 287 of the Constitution.

“It is both incongruous and ludicrous that the monetary judgments of the courts, where it involves government, must be subject to the AG or AGF as the case may be, who by the wordings of Section 84 of 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,” Justice Ogunwumiju held.

She proceeded to partially allow the appeal, while agreeing with the majority decision that the garnishee order absolute was wrongly made against the CBN by the two lower courts.