Boycotting Attorney-General’s Consent in the Enforcement of Money Judgement Under Ganishee Proceeding Against Public Officers – Sequestration to the Rescue

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Qudus Adebola Esq

The law as it stands today is that where money liable to be attached by Garnishee Proceedings is in the custody or under the control of a public officer in his official capacity, or in custodia legis of a Court, as the case may be, an order Nisi shall not be made under Section 83 of the Sheriff and Civil Process Act, unless consent to such attachment is first and foremost sought and obtained from the appropriate public officer, i.e. the Attorneys-General of the Federation and States, as the case may be. As aptly reiterated by our Courts, it will not matter that the Federal/State Attorney-General was a party to the action, his consent must still be obtained. The whole essence of this is to uphold the requirements of Section 84 (1) of the Sheriffs and Civil Process Act in a way that ensures sound public administration and as a matter of public policy aimed at protecting public funds.[1]

Nevertheless; as beautiful as the intention of the draftsman is, same remains a clog to reaping the fruit of court’s judgement awarded against public officers which in this case are judgement debtors in favour of judgement creditors after undergoing unparallel litigation procedures in court. It in fact put judgement creditors in a position of hopelessness and haplessness for the mere reason that the money awarded to them remains on paper that cannot be enforced. As a corollary, it goes without much ado that consent of the Hon. Attorney General is mostly difficult to obtain for a reason yet to be identified. However, for the purpose of the advancement of jurisprudence, one may make a rebuttable presumption that it would be most unlikely for the Hon. Attorney General as an employee of government to consent to an award of monetary judgement against his employer in favour of a private individual.

This makes the law that seeks to award damages to remedy a wrong to be an ass. And carefully borrowing from the words of the very well-respected Jurist, Niki Tobi JSC;[2] the statement that the law is an ass is not a mere cliché or aphorism but has deep rooted application to the practicalities of Law in society. The nature of the ass in law requires that in certain cases, parties should not adopt a highly conservative, ossified and closed-door position but should adopt a versatile position in anticipation of the not too certain destination of the ass. Thus, to say that a monetary judgement which when awarded against a private individual in favour of the government needs no consent of anyone, not even the judgement debtor but in which case consent of an employee of the government (Hon. Attorney General) is needed when same is awarded against government amount to be a good law that enjoys greatest happiness of the greatest number of the people is mostly unfortunate. Therefore, an attempt is hereby made by this writer proffering an alternative to boycott the Hon. Attorney-General’s consent to the grant of an award of judgement sum under garnishee proceeding. To achieve this; an insight is hereby made into Sequestration.

The Black’s Law Dictionary[3] defines sequestration as a judicial writ commanding the sheriff or other officer to seize or detain the goods of a person named in the writ. This writ is sometimes issued against a civil defendant who has defaulted or has acted in contempt of court.[4] It also means a prejudgment action that allows the court to seize or attach property or assets on behalf of the plaintiff and in an effort to make this process easier, a writ of sequestration bond is often used.[5] The surety bond covers the action in the event something goes awry, the bond keeps things together.[6] In clear terms, it is a process of contempt by proceeding against the property of the contemnor and a means of enforcing judgments or orders only where the person in contempt has disobeyed an order of the court.[7] Accordingly, before a writ of sequestration is allowed to be issued, the court must be satisfied that a contempt of court has been committed.[8] Thus, it is a writ of last resort to enforce a judgment or order that requires a person to do an act within a specified time or to abstain from doing a specified act.[9]

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A careful consideration of section 82 of the Sheriff and Civil Process Act shows that a writ of sequestration is issued against the property of judgement debtor who is in the disobedience of court’s judgement preceded by the issuance of an order or a warrant of arrest, commitment or imprisonment against the judgement debtor and detained in custody but persist in the disobedience of court’s order or that such person against whom the order or warrant is issued cannot be found.[10]

The procedure for the issuance of a writ of sequestration is by making an application to a Judge via Motion on Notice supported by an Affidavit for the issuance of the writ in Form 69, First Schedule to the Sheriff and Civil Process Act and is directed to two or more commissioners to be appointed by the court for the purpose, who shall be commanded and empowered to enter upon all the immovable property of the person against whom the writ shall issue, and to collect, take and get into their hands, not only the rents and profits of his immovable property, but also all his goods and movable property to detain and keep the same under sequestration in their hands, until the person disobeying the court order clear his contempt.[11] However, the court may make other order to the contrary to the effect that payment out of the proceeds of such sequestration of all charges attending the execution thereof, including such reasonable remuneration to the commissioners as the court shall think fit to allow, and all the provisions of the rules as it affects attachment of property under a decree for money shall, so far as applicable, apply in the case of a writ of sequestration.

It is however noted that the writ of  sequestration has an element of imprisonment being a preconditional criterion before it is issued and as one of the means to compelling a judgement debtor to satisfy a judgement debt when our courts have held that public officer refers not only to natural person or persons sued in their personal names but extended to public bodies, artificial persons, institutions or persons sued in their official names.[12] Therefore and for the purpose of satisfying the main crux under contemplation, a quick check is made into the corporate criminal liability of a corporate entity being an artificial person capable of not being confined within the four walls of a custodial centre (formerly known as prison).

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Whilst in other jurisdiction, judgement summons and sequestration seem to be issued against corporate bodies without putting into consideration whether they are can be confined within the four walls of a custodial centre;[13] same is not clear under the Nigerian legal system as the two applications under discuss are hardly used by lawyers to enforcing a monetary judgement. That notwithstanding; under the common law, a corporation is liable for criminal liability subject to certain limitations such as assault, manslaughter, murder and rape. This appears to be a departure from the past when criminal liability of corporations was for acts of nonfeasance which was later extended to misfeasance acts. Thus, the common law regime began with strict liability welfare offences which do not require proof of mens rea so that in offences that require proof of mens rea, corporations are made liable by an imputation of the knowledge and intention on the alter ego and directing mind of the corporation.[14] It also came to instances where corporations were vicariously held liable for the acts of their agents.[15]

Undoubtedly, a corporation is an abstraction. It has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for the same purposes may be called an agent; but who is really the directing mind and will of the corporation, the very ego and centre of personality of the corporation. There is no doubt that as a former British colony, the principle of corporate criminal liability in Nigeria is still governed by the old common law doctrine.[16] The common law, it must be remembered, makes it more intractable to prosecute corporations because of the ‘identification doctrine’, which requires that all the blame be linked at least to a director of a company/corporations usually identified as the “directing will”.[17] As company’s responsibilities are commonly spread across the board, it is an obvious difficulty to pin all the blame of the corporation on only one person. And invariably, it is also not possible to incriminate a company by the aggregation of the fragmented faults of the Directors.[18] To be liable for the common law corporate crime, criminal liability of a company must be attributed with the culpability of the human element known as the corporation’s directing mind and will for the singular reason that the directing mind of a corporation may partly or wholly delegate its function to individual members of the senior management of the corporation; therefor, the attribution of authority becomes a very integral factor in the establishment of the criminal liability of a corporation under common law.

In essence; it is argued that whilst imprisonment is not the major focus, product, aim and objective the application of sequestration is set to achieve but to make sure that a judgement debtor complies with the payment of a judgement sum in favour of a judgement creditor; the preconditional criterion for the issuance of a warrant of arrest, commitment or imprisonment can validly be directed to the directing mind of a corporate entity such as the Director/Comptroller General or anyone that sees to the day to day running of affairs of such corporation may be ordered under the corporate criminal liability particularly when the arrest warrant, imprisonment or commitment issued against the directing mind of the judgement debtor is to making sure that such judgement debtor purges herself of the disobedience of court’s order and the continuance of her disobedience may then necessitate the court to sequester the judgement debtor’s property in satisfaction of the judgement debt. Hence; under this application, the consent of the Hon. Attorney General is easily dispensed with or boycotted and failure to comply with the order of court leads to committing the public officer to the correctional centre or in the case of an artificial person, committing the directing mind of the corporation. And in any case the public officer refuses to purge himself of the contempt, his properties are attached to satisfy the judgement sum.

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In conclusion; it is recommended that notwithstanding the fact that this application is rarely used, lawyers are enjoined to give effect to same as a means of enforcing monetary judgement against public officers who are adequately protected by the mandatory Attorney General’s consent under garnishee proceedings to at least test the judicial attitude and possible admonition of the court which will go along to expand our legal jurisprudence and provides for precedents as guidelines to subsequent enforcement of monetary judgement against public officers.

Qudus Adebola Esq. is an Associate with Chinedu G. Udora & Co. alalafiaqudus@gmail.com – 07034479679 – 08134384468

Footnotes

12, Agadez Street, Ademola Adetokunbo Crescent, Wuse II, Abuja.

[1] UNIVERSITY OF CALABAR TEACHING HOSPITAL v. LIZIKON (NIG) LTD & ANOR (2017) LPELR-42339(CA)

[2] Hon. Muyiwa Inakoju. & Ors v. Hon. Abraham Adeolu Adeleke & 3 Ors (2007) 4 NWLR (Pt. 1025) 423

[3] 9th Edition.

[4] ibid

[5] Sarah, “surety bonds, writ of sequestration, writ of sequestration bond” juris.com (Florida, 16th July 2016) https://jurisco.com/what-is-a-writ-of-sequestration/ accessed on 16th December, 2020.

[6] ibid

[7] Collins Dictionary of Law © W.J. Stewart, 2006

[8] ibid

[9] ibid

[10] Section 82, Sheriff and Civil Process Act.

[11] Order 11 Rule 9 of the Judgement (Enforcement) Procedure Rules.

[12] CBN v. ADEDEJI (2004) 13 NWLR (PT. 890) 226 at 254

[13] Steiner Products Limited v Willy Steiner Limited (1966) 1 WLR 986

[14] Samson Erhaze & Daud Momodu, “Corporate Criminal Liability: Call for a New Legal Regime in Nigeria” (2009) (2) Journal of Law and Criminal Justice, 2.

[15] (DPP v. Kent & Sussex Contractors Ltd, 1944).

[16] Samson Erhaze & Daud Momodu, “Corporate Criminal Liability: Call for a New Legal Regime in Nigeria” (2009) (2) Journal of Law and Criminal Justice, 2.

[17] ibid

[18] ibid

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