“Governments across the Federation have over the years, acting on the basis on anachronistic laws, have developed a practice of frustrating such successful litigants thereby acting in flagrant disregard of the principle of equality before the law”.
Last week I started an examination of the concept of Equality before the law which I believe should guide the new administration in the governance of the country. I referred specifically to the provisions of Section 42 and 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) which respectively guarantee the right to freedom from discrimination to Nigerians and extend the Judicial powers conferred to the judiciary to disputes between persons governments in the determination of their civil rights and obligations.
I have chosen to draw attention to the issue of equality as it is evident that such equality does not exist or is not accorded the priority it deserves by government when a successful litigant, intent on reaping the benefits of a judgement delivered in his favour against the government set about to enforce the said judgement. I therefore will highlight, within the space permitted by this forum, how governments across the Federation have over the years, acting on the basis on anachronistic laws, developed a practice of frustrating successful litigants thereby acting in flagrant disregard of the principle of equality before the law.
NATURE AND EFFECT OF COURT JUDGMENTS
The aim of every litigation or dispute submitted to a court of law is to obtain a pronouncement or judgment of the court on the rights of the parties only a declaration of the rights of the parties or may in addition contain positive orders by which either party is required to take certain steps or refrain from engaging in some specified conduct. Whatever is the case, a Judgment of Court is of binding effect and is regarded valid and parties are expected to obey it until it is set aside by a Superior Court. Furthermore, by nature of Section 287 of the Constitution, all authorities or persons are expected to enforce judgments of courts.
METHODS OF ENFORCEMENT
There are numerous ways in which the judgment of a court may be enforced. The particular manner applicable to a specific judgment will depend largely on the nature of the said judgment. A judgment which for example grants possession of land to a party may be enforced by a writ of possession. Similarly a judgment for delivery of goods may be enforced by a writ for specific delivery of the said goods while a money judgment may be enforced by a writ of execution, garnishee proceedings or by several other means most suited for that purpose. These methods are designed to ensure that successful litigants reap the benefits of court pronouncements in their favour. As resort by the populace to the courts for the resolution of disputes is preferable to resort to self-help, it as much a matter of public policy as it is of law that Judgments of courts be enforced and obeyed.
Experience has shown that this process of transforming a judgment on paper to actual benefit of the litigant in one that is fraught with many difficulties. Where a Judgement Creditor seeks to enforce a money judgement by means of a writ of execution, the Judgement Debtor may employ every trick in the book including a Motion for Stay of Execution to delay the process of enforcement. This particular consideration has made Garnishee Proceedings a method of choice in the case of money Judgement. However Garnishee proceedings also present one of the greatest difficulties which a Judgement Creditor may encounter in his quest to enforce a money judgement. This difficulty is none other than the requirement by which the Judgement Creditor/Applicant is expected to obtain the consent of the Attorney General of the Federation or of the State where the money sought to be garnished is one held by a government agency. Before proceeding to discuss this issue, it is pertinent to state the meaning of garnishee proceedings.
Section 83 of the Sheriffs and Civil Process Act Cap 56 Laws of the Federation of Nigeria 2004 provides as follows:
- Debts may be garnished
(1) The court may upon the ex-parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs satisfied.
Garnishee proceedings present the best opportunity for an effective and prompt enforcement of money judgement. The procedure is one that is designed to ensure that it does not suffer the types of technical hitches to which other forms of enforcement are prone and which are capable of exploitation by unscrupulous judgement creditors. Yet as I shall discuss next week it appears the government in Nigeria are above the law when it comes to garnishee proceedings.
To be continued.
AARE AFE BABALOLA SAN, CON