FDI, Judicial Process and S&CPA’s Repugnant Section 84

As I was watching Arise TV’s Morning Show last week, specifically the interview with the President of NACCIMA, Mr Dele Oye, when he mentioned the Ministry of Trade & Investment, my mind immediately drifted to issues like FDI (Foreign Direct Investment) and the ease of doing business. Whether foreign or local business, important considerations that can influence the decision as to whether to sink investment into a place or not, are the Government’s attitude to the rule of law, and the Judiciary and legal process in an environment – factors such as the strength and independence of the Judiciary, upholding the rule of law, efficient dispute resolution mechanisms, investors’ confidence that their investments are protected and the like. People want to know that their contracts will be properly enforced, and that they are not investing in a place where Government can make arbitrary decisions, maybe even seize or nationalise their businesses, or impose unreasonable, unfair taxes and fines at will. 

CBN v Inalegwu Franklin Ochife, IGP & 2 Ors

So, reading CBN v Inalegwu Franklin Ochife, IGP & 2 Ors (2025) LPELR-80220(SC) per Habeeb Adewale Olumuyiwa Abiru, JSC a case in which the 1st Respondent having got judgement against the 2nd – 4th Respondent in the sum of N50 million, commenced garnishee proceedings against the Appellant, CBN. The decision of the lower courts was reversed, and the appeal was allowed by the Supreme Court.

The case raised several interesting questions, but, due to space constraints, I shall limit the discussion to what I consider to be most important. 

Abiru, JSC: Lead Judgement of the Supreme Court

In his lead judgement, Hon. Habeeb Adewale Olumuyiwa Abiru, JSC defined Garnishee Proceedings thus: “…a process of enforcing a money judgement by the seizure or attachment of debts due and accruing to the judgement debtor, which forms part of his property in the hands of a third party for attachment….They are….governed by the Sheriffs and Civil Process Act” (S&CPA). His Lordship cited several cases including Sterling Bank v Gamau (2019) LPELR-47067 (CA), and made it clear that, although the garnishee proceedings arise from a judgement pronouncing a debt owed, the garnishee proceedings are a separate and distinct process from the judgement pronouncing the debt. His Lordship, Abiru, JSC explained the procedure that is followed by the Judgement Creditor to recover the judgement sum (see Page 17-23 of the judgement).

The Apex Court decided that, since the judgement was obtained against 2nd – 4th Respondent as the Judgement Debtors, for their account under the Treasury Single Account (TSA) Policy at the CBN to be attached for the judgement sum, and the Judgement Creditor failed to provide the details of any such account at the CBN, because in actual fact, the 2nd – 4th Respondent do not operate an account under the TSA Policy with the CBN as they are neither Ministries, Departments or Agencies (MDAs) of the Federal Government, meaning no such account exists, the Judgement Creditor’s assertion in this regard was incorrect. In view of this fact, there was no account of the Judgement Debtors lodged at the CBN, to attach funds from in favour of the Judgement Creditor. Consequently, the Apex Court allowed the appeal of the CBN. 

Technical Justice v Substantive Justice 

What I found somewhat troubling about the decision of the Federal High Court, with regard to the garnishee proceedings was the placement of technical justice above substantive justice. In Akpan v Bob 2010 17 N.W.L.R. Part 1223 Page 421, the Supreme Court held that “technical justice is no justice at all, and that a court of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned….Where the facts are glaringly clear, the courts should ignore mere technicalities, in order to do substantial justice”. I concur. 

After the decree nisi was granted upon a motion ex-parte moved by the 1st Respondent (Judgement Creditor) at the Federal High Court, that the N50 million judgement sum due to him be attached from the 2nd – 4th Respondent’s account under the TSA Policy at the CBN, the court ordered the CBN to file its affidavit to show cause why it shouldn’t pay the said amount to the Judgement Creditor. The CBN’s affidavit to show cause stated that the 2nd – 4th Respondent didn’t maintain any account with the CBN, though the said affidavit was filed out of time and wasn’t regularised. Consequently, the court rejected the said affidavit, and pronounced the garnishee order absolute. The Judgement Creditor, also didn’t file a counter-affidavit.

Should the Federal High Court have considered the fact that, whether the affidavit was out of time or not, the averments therein concerning the 2nd – 4th Respondent not maintaining a TSA or any account with the CBN, which were not controverted by the Judgement Creditor in a counter-affidavit, were of the greatest importance to the proceedings, as the garnishee order wouldn’t have been able to be executed if granted, because it is factually true that the 2nd – 4th Respondent don’t maintain any such account with the CBN, instead of granting the order in vain? 

In this case, could the affidavit to show cause being out of time, in the interest of justice, have been treated as a mere irregularity, and deemed accepted as correct (particularly as it was factually correct), as is done when affidavit evidence remains uncontradicted (see APC v Sheriff & Ors (2023) LPELR-59953(SC) per Adamu Jauro, JSC), instead of being discountenanced because it was out of time? That is, choosing substantive justice over technical justice?

Ogunwumiju, JSC: Section 84 Sheriffs and Civil Process Act

Though Her Lordship, Hon. Helen Moronkeji Ogunwumiju, JSC, agreed that the Appeal be allowed in part (see Page 1 of the judgement), there was an important aspect which wasn’t settled in the lead judgement, or may not have been dealt with by the Apex Court in other judgements either, that is, the issue of Section 84 of the Sheriffs and Civil Process Act 1945 (S&CPA) which, Her Lordship considered extensively in her judgement. 

In my view, this provision is directly related to the above-mentioned factors that I outlined, regarding the ease of doing business. It is my humble opinion that Section 84 is a stumbling block, and certainly, anti-FDI or anti-any kind of investment for that matter, at least, once Government is part of the business, because when monetary judgements are obtained against Government, Federal or State, or any of its agencies, it is unlikely that any AG, whether AGF or AGS, will give consent to anybody to attach the funds of their Government agencies in any Bank. At best, such AG may call for a negotiation with the Judgement Creditor, which may result in the whittling down of the judgement sum, further turning the Judgement Creditor’s victory in court to nonsense. 

The said Section 84 of the S&CPA provides inter alia that, where money to be attached in garnishee proceedings is in the custody of a public officer in their official capacity, an order nisi for the attachment shall not be made unless consent for such attachment is first obtained from the appropriate officer, being the Attorney-General of the Federation (AGF), in the event that it’s a public officer in the public service of the Federation, or Attorney-General of a State (AGS) if it’s a public officer in the public service of a State. 

Her Lordship, Ogunwumiju, JSC, discussed the issue of separation of powers, which Section 84 appears to defy, as it endows the AGF or AGS, who are members of the Executive, with some kind of wide veto power over a court’s judgement, which is certainly anomalous, as it allows for the overlap of the function of one arm of government into another, which shouldn’t be. Her Lordship pointed out that Section 84 of the S&CPA is inconsistent with Section 287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended)(the Constitution) which provides for the enforcement of judgements of the courts without any condition. Additionally, Section 1(1) & (3) of the Constitution is clear that the grundnorm is supreme, and any law that is inconsistent with it, is null and void to the extent of its inconsistency (see Page 64-67 of the judgement).

After going through the rigours of litigation which may have lasted for years, is it fair to a Judgement Creditor, to make it a condition precedent for them to have to seek and obtain permission, particularly if they are unlikely to get the permission, in order to have their judgement enforced? What was the essence of the litigation then? This condition precedent, which like I said before may usually result in a negotiation with an AGF or AGS, almost resembles an appeal on the monetary judgement of a court of competent jurisdiction being heard by the Executive arm of Government! This position was more or less stated in one of the cases cited by Ogunwumiju, JSC –  NNPC v Fawehinmi 1998 7 N.W.L.R. Part 559 per Ayoola, JCA (as he then was) where the Court of Appeal held that enactments can be held to infringe upon Section 6(6)(b) of the Constitution when they provide for the sharing of judicial powers with bodies other than the courts itself vested in, removes or redefines the powers of the courts in a manner that whittles it down or limits the extent of the power vested. I submit that this definition fits  Section 84 like a glove. In a case like CBN v Inalegwu Franklin Ochife, IGP & 2 Ors (Supra), it was litigated at the Federal High Court from where appeals lie to the Court of Appeal (see Section 242 of the Constitution). Ogunwumiju, JSC, held 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”. 

Why would anyone even be interested in investing in a place, where dispute resolution mechanisms are skewed towards Government and its agencies ab initio? It is abnormal, suspicious and unnecessarily cumbersome, almost like a ruse to deny a Judgement Creditor the fruit of their judgement when it comes to matters concerning Government, by insisting that they obtain the consent of the AGF or AGS in order to be able to enforce their monetary judgement. 

And, this suspicion isn’t unfounded when one discovers that, the origin of Section 84 of the S&CPA lies in the common law and anti-democratic concept of “the King can do no wrong”, as Her Lordship, Ogunwumiju, JSC revealed, and went on to explain that Section 251(4) of the 1979 Constitution of Nigeria as modified by Decree 107, a military innovation which simply replaced the King with the Military Government or its Ministries, Departments and Agencies, echoing Section 84 of the S&CPA, was deleted from the 1999 Constitution. The S&CPA, is an existing law that is under the purview of the  matters that the National Assembly can legislate upon, and by virtue of Section 315(1)(a) of the Constitution, the S&CPA should have been modified by the expungement of Section 84 therefrom, to bring the S&CPA into conformity with Section 287 of the Constitution, especially because Section 84 which was formerly Section 251(4) of the 1979 Constitution, had been excluded from the 1999 Constitution. 

In CBN v Inalegwu Franklin Ochife, IGP & 2 Ors (Supra), the 1st Respondent didn’t obtain the AGF’s prior consent. And, though, within the definition of public officer in Section 318 of the Constitution and Part II Fifth Schedule thereto, the CBN is not included as a public officer; only its staff would be public officers, in Ibrahim v Judicial Service Committee, Kafuna State & Anor (1998) LPELR-1408(SC) per Anthony Ikechukwu Iguh, JSC, the Supreme Court held that “the term “public officer” has by law been extended to include a “public department” and, therefore, an artificial person, a public office or a public body”.

Conclusion 

In my humble opinion, I believe that the Apex Court should strike down Section 84 of the S&CPA as unconstitutional, at the next opportunity it gets. Since Her Lordship, Ogunwumiju JSC, also allowed the appeal like her Brother JSCs, at best, her voyage into the constitutionality of Section 84 can only be described as ‘Obiter Dicta’ and a pronouncement that has laid the foundation for the outright declaration of Section 84 of the S&CPA’s unconstitutionality vis-à-vis its inconsistency with Section 287 of the Constitution. See the case Agi v PDP & Ors (2016) LPELR-42578(SC) where the Apex Court reiterated the point that, no law can come into effect to undermine the effect of a constitutional provision. I submit that Section 84 undermines Section 287 of the Constitution, and all the excuses given by the various Government agencies as the rationale for retaining Section 84 in our statute books, cannot stand in the face of the supremacy of the Constitution. The argument that people may obtain ‘ofege’ (suspicious) judgements against Government/its agencies/officials acting in their official capacity, and the intervention of the AGF or AGS is required to ascertain the authenticity of their claims or protect Government’s interest by virtue of Section 84, is neither here nor there, as such judgements can easily be appealed. 

As the review of the Laws of the Federation continues, such repugnant laws as Section 84 should be removed from the statute books, not just because they may be unconstitutional, but because they are at variance with the tenets of democracy, the rule of law, separation of powers, or are simply outdated and have no business in the present day.