Alex Enumah in Abuja

The Supreme Court has upheld the provision of Section 84 of the Sheriff and Civil Process Act (S&CPA), which stipulates that before the initiation of garnishee proceedings to enforce monetary judgement against government or its agencies, the consent of the Attorney General of the Federation must first be obtained.

Meanwhile, the apex court in a split decision of four-to-one declined to examine the constitutionality or otherwise of the said provision, despite the fact that the dissenting judgement declared Section 84 of the S&CPA unconstitutional.
The affirmation of the said Act was made in a judgement in an appeal marked: SC/CV/268/2021, filed by the Central Bank of Nigeria (CBN) against the December 4, 2020 judgement of the Abuja division of the Court of Appeal.

Recall that the appellate court had in a judgement delivered on October 10, 2018, affirmed the decision of the Federal High Court, Abuja, which issued a garnishee order absolute against the Central Bank of Nigeria (CBN) in settlement of a N50 million judgement debt.
Justice Habeeb Abiru, who delivered the lead majority judgement held that it was wrong for the CBN to have raised, for the first time at the Court of Appeal, the issue of whether or not it was mandatory to first obtain the consent of the AGF before initiating garnishee proceedings.

“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,” Justice Abiru held.

Although, the judgment was delivered on January 24, however, a Certified True Copy (CTC) sighted on Sunday, observed that Justice Abiru proceeded to strike out the three issues on that subject, formulated by the CBN for the court’s determination.

Justice Abiru however set aside the judgement of the Court of Appeal on the grounds that it wrongly categorized the Inspector General (IG) of Police and some other police personnel (listed as judgement debtors) as government agencies whose funds are in the Treasury Single Account (TSA) domiciled in the CBN.

Justices John Okoro, Adamu Jauro and Moore Adumein agreed with Justice Abiru’s position.

Meanwhile, in the minority judgement delivered by Justice Helen Ogunwumiju, the apex court held that the 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 seeks 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 judgement 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.

She added: “There is no doubt that Section 84 of the S&CPA seeks to limit the exercise of the execution of a valid Court judgement. 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 judgements 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 judgement of the courts to the supervisory authority of the AGF,” Justice Ogunwumiju said.

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 both the Federal High Court and the Court of Appeal.

Following a case filed by Ochife, a Federal High Court in Abuja on October 10, 2018 gave its judgement awarding to Ochife N50 million in damages against the IG, the Commissioner of Police (FCT), and the Officer in Charge of the Intelligence Response Team, Special Anti-Robbery Squad (SARS).

In a bid to enforce the judgement, Ochife initiated a garnishee proceeding to attach funds from the judgment debtors’ accounts under the Treasury Single Account (TSA) held in the CBN.

On December 10, 2018, the Federal High Court issued a garnishee order nisi directing the CBN to deduct N50 million from the alleged accounts of the judgment debtors.

The CBN, however, filed an affidavit to show cause, asserting that it did not hold any accounts in the names of the judgement debtors and was therefore unable to comply with the order.

Despite the CBN’s claim, the Federal High Court proceeded to make the garnishee order absolute on January 21, 2019, prompting the CBN to appeal the decision.

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