By Henry Ojelu
On October 7, 2009 Citizen Ottoh Obono was paraded by the Lagos State Police Command before journalists as a member of a gang of armed robbers. The following day, his pictures were splashed on both the print and electronic media. The police alleged that he belonged to a gang of armed robbers who specialized in car snatching. Upon his arraignment, he was remanded in Kirikiri Prisons pending advice by the Lagos State Directorate of Public Prosecution. After an agonising 10 months of incarceration, he was eventually released based on the findings of the DPP’s office that he was innocent of the crime for which he was accused.
Pained by his horrific prisons experience and the public ridicule he was subjected to, Obono sued the police for infringement of his fundamental human right. Two years after the suit was filed, a Federal High Court in Calabar ordered the Nigerian Police to pay him N20million as damages. In the judgment, Justice Chukwujekwu Aneke held that the police action had not only made nonsense of the applicant’s right to presumption of innocence as enshrined in Section 36 (5) of the Constitution, but also left much to be desired in the administration of justice system in the country. Seven years after the judgment was delivered, Obono is yet to get the judgment sum from the police.
Obono’s case is one of the many cases that highlight the herculean task of executing court judgments against the Nigerian police and many other government security agencies such as Nigeria Customs Service, NCS, Department of State Security, DSS, Nigerian Immigration Services, NIS etc.
Before now, the situation was less challenging because some of the security agencies had active and identifiable bank accounts with the commercial banks. But with the advent of government’s Treasury Single Account, TSA, security agencies are not allowed to operate independent bank accounts. The implication of this is that when an individual sues the police or any of the security agencies and gets judgment, it becomes practically impossible to commence a garnishee proceeding against those security agencies. This is because no bank account is traceable to them.
The second issue is the Sheriff and Civil Processes Act which stipulates that the consent of the Attorney-General of the Federation must be gotten before monies belonging to any government agencies could be released to settle a judgment debt. Section 84 of the rule stipulates that the consent of appropriate officer or court is necessary if money is held by public officer or the court.
The section states: “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, the order nisi shall not be made under the provisions of the last preceding section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of a public officer or of the court in the case of money in custodia legis, as the case may be. [L.N. 47 of 1955.]
“ (2) In such cases the order of notice must be served on such public officer or on the registrar of the court, as the case may be. (3) In this section, “appropriate officer” means- (a) in relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation; (b) in relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney of the State.”
By this provision, the Attorney-General who in most cases is a defendant in the suits against security agencies is required to always give consent before judgment debts are paid. This obviously amount to becoming a judge in ones case.
Several lawyers who spoke to Vanguard Law expressed concern that non-enforceability of court judgments against the police and many other security agencies is a clear breach of the tenet of democracy and rule of law. Those who expressed their views on the issue include Former Solicitor-General, Lagos State, Lawal Pedro, SAN; Publisher of Supreme Court Reports, Layi Babatunde, SAN; Executive Director, Access to Justice, Joseph Otteh and former 2nd Vice-President, Nigerian Bar Association, NBA, Monday Ubani.
The judiciary need to have enforcement unit- Pedro, SAN
Reacting to the issue, Lawal Pedro stated that it is worrisome that government and its agencies that are supposed to uphold the rule of law and justice appears to be the ones mounting obstacles against execution of judgments. He suggested that the judiciary should exert its independence by creating a judgment enforcement unit to tackle the problem.
He said: “The problem is a serious one but there is a way we can go round it. My suggestion is that the court should create what I call Court Police Unit, CPU, to be headed by an Assistant Commissioner of Police. That Commissioner should be given an office in the court with his own staff. The Nigeria Ports Authority, NPA, has a Commissioner of Police. The court should also have it own police unit. So it is that commissioner of police of the court that should take responsibility for enforcement of judgment whether it is against the police or any other security agency. That unit will also handle the issue getting the various security agencies to pay their judgment debt especially when right of appeal has been exhausted”
It is like being a judge in one case-Babatunde, SAN
Speaking on the issue, Layi Babatunde stated that allowing the Attorney-General to grant consent before monies belonging to government agencies can be debited as judgment debt, amounts to making the AG a judge in his own case.
He said: “The way I see it is that until we run a country that is governed by institutions as opposed to strong men, it will be difficult to confront this kind of issue. The major challenge here is the legislation which requires the Attorney General to always give consent before judgments are executed. It is like asking for permission from someone who judgment is against to give you consent to execute the judgment. Although the court have to moderate their decision, the truth of it is that there is something fundamental wrong about our attitude to the rule of law. We seem to have problem with what it means. Late President YarÁdua tried to do something about the backlog of judgments against the government them, but because of our perverted attitude, it became a problem for government due to the kind of judgments that were suddenly coming up for execution. Unless there is a fundamental rethinking on our part concerning the rule of law, we are not going to make progress. Whether we are in or out of government, if we don’t commit ourselves wholeheartedly to the rule of law, it will be difficult to tackle this kind of challenge.
It is a major drawback for rule of law- Otteh
On his part, Executive Director, Access to Justice said that there is need to review the Sherrif and Civil Procedure Law which empowers the Attorney-General to grant consent in execution of judgment against government agencies. He described the challenge as a drawback to the rule of law.
He said: “It is not just a big issue, it is a crisis. It is a major obstacle. These are the kinds of things that the legal profession should have taken up and addressed long time ago. It is a major drawback for the rule of law, for victims of human rights abuses and even for the nation and governance. The issues are huge and very important. If your rights are infringed, the only remedy open to you is to go to court to hold those who have infringed on your rights accountable. Accountability also adds a deterrent value. When the security agencies keep paying those damages, it will help them to self correct the problem that give rise to financial haemorrhaging.
“Monies that should have been used for the purpose for which it was appropriated for are now used to pay damages. So it should help those institutions check the behaviour of those who get them into these kinds of troubles. It is supposed to be a self correcting mechanism. But the problem with this, is the very obnoxious law called, Sherriff and Civil Procedure Act that says that before a court can make an order for monies belonging to government be released in satisfaction of judgment debt, you must get the consent of the Attorney-General. It is so ridiculous. What the police do is that many times, they don’t event border responding to the summons. Sometimes they do but half heartedly. That is because they know that it will be nearly impossible for you to get this money. This Attorney-General will certainly not give you consent.
“There has been some effort to resolve the matter constitutionally. Some have argued before the court that you can’t have the person whose agent has caused this damage sitting on top of judgment of court and directing when to obey or not obey that government. It is really constitutionally nebulous. Even courts adopt conflicting approaches on the issue. Some says it is unconstitutional to acquire the AG’s consent. Others say it is not. “
National Assembly need to intervene- Ubani
Former 2nd Vice-President, Nigerian Bar Association, NBA, Monday Ubani suggested that the National Assembly should find a way of deducting judgment debt from budgetary proposal of government agencies.
He said: “The issue of enforceability of judgment speaks volumes of the kind of democracy we have in place. This government came into power on the mantra of change but nothing has change. Impunity is still the other of the day. Two years ago, I got two judgments against the police but up till now, I have not been able to execute it. The government agencies account involved is not with the bank so where do you get the money from. Moreover it is the same police that are judgment debtors that are supposed to help you in executing the judgment. I personally think that the National Assembly has a major role to play here. We can’t have a country where judgments are not enforceable. It is very frustrating. If you cannot execute a judgment against the government when you rights are infringed on, where lies justice which the government ought to uphold. I just pray that it does not get to a point where people resort to self-help. My take is that the National Assembly should pass a law that would allow them subtract judgment debt from the budget of government agencies when they are brought the assembly. That, I believe will deter these agencies from undermining the law.”