June 9, 2023

Analysis: The Many ‘Archaic’ Provisions of the Act Guiding Judgement Debt in Nigeria by Seun Olawuni

In 2017, the Supreme Court, Nigeria’s apex court ruled that three federal lawmakers be sacked and should return all monies collected in form of salaries and allowances.

The court awarded judgement debts against Abubakar Danladi, then a senator, Herman Hembe and Sopuluchukwu Ezeonwuka, both members of the House of Representatives as at that time.

Cumulatively, the lawmakers were supposed to return about N62 million within the 90 days stipulated by the court.

However, over two years after, none of the three has paid any amount to government coffers in respect of the court. Why are they able to disrespect court judgement?

This analysis focuses on the loopholes in the Sheriff and Civil Process Act and shortcomings in its implementation.

Enacted in 1990, the act guides judgement debt in Nigeria and it defines a judgment as including an order of courts.

Judgement debt is a damage or other monetary award which has been pronounced upon by a court of competent jurisdiction.

According to the law, there are two parties to enforcement of a judgment. The judgment creditor (any person for the time being entitled to enforce a judgment) and the judgement debtor (a person liable under a judgment).

This analysis traverses the many ‘archaic’ provisions of the law and non-realities in its implementation as against the reality of today.

Ridiculous charges

First among the unrealistic provision of the law are charges attached as fine for judgement debtor who violate the law.

For instance, section 28 of the act provides that “if any person rescues or attempts to rescue any goods seized in execution under process of a court or in any other way resists or obstructs the execution of any process for the enforcement of a judgment of a court, he shall be liable, either on an order made in that behalf by the court from which the writ of execution or other process issues, or on summary conviction, to a fine not exceeding one hundred naira, and any bailiff of the court may take him into custody with or without warrant, and bring him before the court.”

By interpretation, if the judgement debtor obstructs the enforcers of the law in the process of seizure of his properties, such obstruction only attracts a fine of N100, about one quarter of a dollar. It also means an offender can go without being punished once he is able to pay N100.ALSO READ  Senate to inaugurate committees Tomorrow

However, more important to note is the fact that the law was promulgated when naira still have value relative to now. As at 1990, 1 dollar was equal to N9 but the value has sky-rocketed now, fluctuating between N350 and N380.

Other ridiculous charges abound in the law.

In Section 41, the law says that “no sheriff or other officer in executing any process of a court…shall be deemed a trespasser by reason of any irregularity or informality.

“In the form of the process or in the mode of executing it, but any person aggrieved may bring an action for any special damage sustained by him by reason of the irregularity or informality against the person guilty thereof: Provided that no costs shall be recovered in such an action unless the damages awarded exceed four naira.”

On misconduct of judgement debtor, Section 69 provides that “any judgement debtor with misconduct enumerated in section 66 of the Act may not be committed to prison for a longer period than one year in any event, or for a longer period than six month if the judgment be for payment of money not exceeding two hundred naira, or for a longer period than three months if the judgment be for payment of money not exceeding thirty naira.”

In Section 78, under the subsistence of debtor prisoners, the law provides “where the judgment debtor is committed to prison, the court shall fix whatever monthly allowance it shall think sufficient for his subsistence, not exceeding forty-five kobo per day, which shall, subject to the provisions of section 81 of this Act, be paid by the judgement creditor by equal monthly instalments in advance before the first day of each month to the registrar.”

Enforcement of judgement against the state

Enforcement is the process whereby a judgment or order of court is made effective according to law. It is the last phase of judicial process.ALSO READ  Millions Suffer deplorable Health in Oyo, Lagos Urban Slums- Global Health

Section 6(6)(a) of the 1999 Constitution (as amended) gives the court the power to enforce and ensure compliance with its judgment or order. Apart from the constitution, the Sheriffs and Civil Process Act provides for this.

Meanwhile, there is a major huddle faced when obtaining judgement against the state.

The law in Section 84 speaks on consent of execution of money judgements against the government and its states in this regard is if money judgment is obtained against a public office, the consent of the Attorney-General (either of the State or Federation as the case may be) must be obtained before such funds in the custody of a public officer can be attached in a garnishee proceeding.

However, this contradict provisions of section 287 of the Nigeria’s constitution. In section 287, the constitution says “the decisions of the (Supreme) court shall be enforced in any part of the Federation but all authorities and persons and by courts with subordinate juristic to that of the supreme Court”

Apart from the contradiction, lawyers lament that the law make judgement against the government difficult with the requirement that the creditor see the consent of Attorney General of the Federation before judgement can be enforced against government agency.

Inihebe Effiong, a lawyer and human rights activist says: “I find this obnoxious. For instance, if the police or any government parastatals are judgement debtor, you cannot enforce judgement except you obtain the consent of the AGF. It means some debtors are above the law. The truth is that the law need to be amended to reflect the reality of today”.

Non-party enforcement

Also seen as a loophole in the law is its silence on judgement debt enforcement in cases where the beneficial party is not included in the suit.

For instance, in the case of the three federal lawmakers painted above, the Supreme Court asked them to return all monies to the coffers of the National Assembly. However, the National Assembly was not a party to the suit and hence, had failed to act over two years after the provision.ALSO READ  A Nigerian, a Library, and Lawmakers By Pius Adesanmi

The Act allows the creditor, in this case several options in enforcing a judgment debt but that is only practicable when he or she is a party to the suit.

Lekan Alabi, a lawyer, said the Attorney-General can enforce the judgement on behalf of the state but it needs to be notified by the National Assembly to do so. This option, he said, is viable because the National Assembly was not a party to the case.

“The Attorney-General of the Federation can enforce that judgement because it is public fund. On the strength of that judgement, the AGF can take an application to the High Court and file for action for an attachment of the property of the debtors. The sheriff of the lower court will attach the properties and pay to the coffers. But somebody must draw the attention of the AGF to it because he’s not a party,” Mr Alabi said.

Lawyers’views on the archaic law

Since enactment, there is no known attempt at amending the Sheriff and Civil Process Act.

Bolarinwa Salami, a Lagos based lawyer said that the law is too old but amendments may not even be solution.

“The law is too old but the process of amendments in Nigeria takes years. Before they complete the amendments, there maybe another inflation. Does this mean, we will have to amend everything?, he said.

Mr Salam said each state should be allowed to use their discretion with respect to the way and manner which process and other issues on judgement debts are to be handled.

Another lawyer, Ademola Owolabi argued that laws should give “operators” discretion by allowing Chief Judges of each states to bring them to life”

“If dollar becomes N5 tomorrow, then N100 may even be too much as fine. So what we have to do is to make the laws lenient so that operators can decide in any circumstances”

He said amendments only make laws bigger and heavier.

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