Christopher Onjewu V. Kogi State Ministry of Commerce & Industry & Ors. (2002)
LawGlobal-Hub Lead Judgment Report
MUNTAKA-COOMASSIE J.C.A.
On the 15th June, 2000, the Plaintiff filed a suit which was agreed to be placed under the undefended list for hearing under the relevant rules of the High Court of Kogi State. It was holden at Lokoja Mr. Christopher Onjewu the plaintiff claimed a liquidated sum in the following:-
“1. The Plaintiff claims against the Defendants the sum of N14,541,505.53k (fourteen million, five hundred and forty-one thousand, five hundred and five naira, fifty three kobo only) being the money owned by the 1st Defendant to the plaintiff as a result of consultancy services rendered by the Plaintiff to the 1st Defendant for the Construction of a permanent Trade Fair Complex at FELELE LOKOJA.
- 10% interest per annum on the judgment debt from the date of Judgment until the final liquidation of the judgment debt.”
Before considering the case 1st and 2nd Defendants filed an application on Notice challenging the competency of the suit and urged the court to strike out the suit. The prayer/ground reads thus:-
(a) That the Consultancy Agreement between the Plaintiff and the Defendants Exhibit “A” to the Affidavit in support of the writ contains an arbitration clause.
(b) The dispute has not been submitted to Arbitration before the issuance of the writ.
Learned Counsel were heard by the Court and all their arguments and submissions received by that court after which the trial court entered judgment in favour of the plaintiff, now the Appellant in the sum of N8,701,448.00k admitted by the 1st Respondent together with 10% interest per annum on same out of the main claim of the N14,541,505.53k. The court then stayed proceedings in the main case to enable the parties contest the balance. It was submitted that the position taken by the trial court is faultless, having considered the pronouncement of Aniagolu JSC in the case of Mosheshe General Merchant Ltd. Vs. Nigerian Steel Ltd. (l987) 2 NWLR (part 55) 110 at p120. Consequently the Appellant in order to enforce the judgment sum of N8,701,448 00k, filed a garnishee proceedings on 22nd January, 2001. It was on 19th June, 2001 that the trial court made an order nisi directing the 3rd Respondent to appear in court to show cause why it shall not be ordered to pay the judgment debt to the appellant. Failure to appear in court on 12th July, 2001 the learned trial judge made an order absolute directing the 3rd Respondent to pay N8,701,448.00k to the Appellant in two equal instalments by Bank Drafts. It has never been in doubt, and no body contested the position, that the Kogi State Government has money standing to its credit with the First Bank of Nigeria PLC.
That being the case and after making the order absolute the three Respondents herein filed Motions on the 13th and 16th of July, 2001 to set aside the order absolute on the ground that the Appellant did not secure and obtain the consent of the Attorney-General of Kogi State as required under Section 8(3) of the State proceedings Edict, 1988 and also Section 8(4) of the Sheriffs and Civil Process Law before the order absolute was made on 12th July, 2001.
The trial court after listening to the arguments and submissions of all the counsel in the motions act aside the order absolute earlier on made. He did that in a considered ruling delivered on 2nd, August, 2001. His words:-
“Be that as it may, it is clear from the laws and the decided cases referred to that the consent of the Attorney-General was not obtained before the order absolute was made by this Honourable court on the 12th July, 2001.
The failure of the judgment creditor to comply with the condition precedent deprived this court of the jurisdiction to hear the application and make the absolute order complained against.. An order made without jurisdiction is null and void and should be set aside…” It is trite that an order which is a nullity on ground of common mistake, fraudulent misrepresentation, e.t.c can be set aside by the same court which made the order- See Vulcan Gases v. Gesdischast (supra) and Okafor VS. Attorney General of Anambru State (supra) cited by Mr. Fagbemi.
In the circumstances, I invoke the inherent jurisdiction conferred on this Honourable Court by Section 6(6) of the Constitution of 1999 and set 5 aside the order absolute made by me on the 12th day of July, 2001. Applications succeed. ”
The Appellant herein is not happy with the above ruling and appealed to this court and med two grounds of appeal as follows with their respective particulars: –
GROUND 1
The learned trial Judge erred in law when he held as follows:
“The validity of these two Laws is derived from item 57 in Exclusive Legislative List, Second Schedule to the 1999 Constitution which reads: “57, Services and execution in a state of the civil and criminal processes. judgment, decrees, orders and other decisions of any court of Law outside Nigeria or any Court of Law in Nigeria other than a Court of Law established by the House of Assembly of the State.” “From this provision it is clear that a State Government has the power to legislate on execution of judgments within the State, and to provide the procedure for the enforcement of such judgments.”
PARTICULARS OF ERROR:
(a) The Kogi State House of Assembly has no legislation power to make the two Laws i.e. the State Proceedings Edict of 1986 and Sheriffs and Civil Process Law (which provisions make the consent of Attorney General of Kogi State a pro-condition to the enforcement of judgment against Kogi State Government) as both Laws purport to make law on the subject matters on the Exclusive Legislative List on which only the National Assembly can legally make law by virtue of Section 4(3) of the 1999 Constitution. By virtue of Section 4(7) (a) of the CFRN 1999 the Kogi State Government cannot make law in respect of any matters included on Exclusive Legislative List (i.e. item No. 57) set out in Part 1 of the Second Schedule to the Constitution of 1999.
(b) By virtue of Section 270 (1) and Section 6(3) (4) and (5) (e) of the 1999 Constitution the High Court of Kogi State is created by the 1999 Constitution and therefore not a court of law established by the Kogi State House of Assembly for which the latter can make law in respect of its practice and procedure (including the service and the execution of all civil and criminal processes of the court).
GROUND 2
The learned trial judge erred in law in setting aside the garnishee order absolute by the sole premise of the fact that the consent of the Attorney-General of the Kogi State had not been obtained as per Section 84 of the Sheriffs and Civil Process Law and Section 8 (3) of the State Proceedings Edict of 1968 when such requirement for consent is unconstitutional having regard to Section (1)(3) and Section 287(3) of the Constitution of the Federal Republic of Nigeria. 1999.
PARTICULARS OF ERROR
(a) Section 8(3) of the State proceedings Edict of 1988 and Section 84 (1) of the Sheriffs and Civil Process Law make the consent of the Attorney-General a procondition to the enforcement of judgment against Kogi State Government.
(b) Section 287 (3) of the Constitution of the Federal Republic of Nigeria 1999 does not place any such inhibition or impediment on a Judgment Creditor hence the above provisions derogate from the provisions of Section 2.87 (3) of the Constitution aforesaid and the principle of rule of law as enshrined in Section 36 (1) of the Constitution of Federal Republic of Nigeria 1999.
In accordance with the rules of this court, the parties filed and exchange briefs. One issue for determination was identified by the Appellant as follows:-
“Whether Section 8(3) of the State proceedings Edict 1988 and Section 84 (1) of the Sheriffs and Civil Process Law of Kogi State are legally valid having regard to the provisions of section 287(3), Section (3), Section 6(6) (b) and Section 36(1) of the 1999 Constitution of the Federal Republic Nigeria AND whether the learned trial judge was right to have invoked same to set aside the garnishee order absolute.”
For their part 1st and 2nd Respondents framed equally a single issue for determination in their joint Brief of argument. The 3rd Respondent also identified one issue for our consideration of the appeal.
1st and 2nd Respondents formulate thus:-
“Whether the provisions of Section 8(3) of the State Proceedings Edict 1988 of Benue State (Applicable to Kogi State by virtue of Section 4 of the State Creation and Transitional No.2 Decree 41 of 1991), and the provisions of Section 84 (1) of the Sheriffs and Civil Process Law of Northern Nigeria (applicable to Kogi State) which both require that the Consent of the Attorney-General must be obtained before commencing Garnishee proceedings against the Government and inconsistent with the provisions of the 1999 Constitution of the Federal Republic of Nigeria.”
While the 3rd Respondent Garnishee stated as its Issue for determination thus:-
“Whether the requirement of obtaining the consent of the Attorney-General before attaching by Garnishee proceedings money in custody or under the control of a public officer in his official capacity as provided in the Sheriffs and Civil process Law, Cap. 123 Laws of Northern Nigeria applicable in Kogi state is valid?”
Having considered and digested the issues formulated by all the parties in this appeal I discovered that the issues between the parties are interwovened. Each issue is related to the other issue formulated by the other party. In view of the fact that the sole issue formulated by the Appellant covered the issues formulated by all the Respondents I decide to use the issue distilled by the Appellant in considering this appeal.
However that stand taken will not prevent this court from discussing specifically other relevant issue in the formulation of issue by the other Respondents.
The grouse of the Appellant in his issue is that how the learned trial judge invoked the provisions of the state proceedings Edict 1988 and that of the Sheriffs and Civil Process Law of Kogi State to set aside the garnishee Order made absolute. He contended that the decision of the trial court in so doing was wrong especially when it was considered that the two provisions appeared to be contrary to the provisions of the 1999 constitution of the Federal Republic of Nigeria. In order to appreciate the submissions of the counsel I reproduce hereunder the relevant sections:- Section 287(3)provides:- The decision of the Federal High Court, a High Court and all other courts established by this Constitution shall be enforced in any part of the Federation by all Authorities and persons, and by other courts of Law with subordinate jurisdiction to that of the Federal High Court, a High Court and those other courts respectively.” (underlinings mine.)
Section 6(b) of the 1999 Constitution says;-
(b) shall extend to all matters between person, or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto for the determination of any question as to the civil rights and obligations of that person.”
Also Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria…
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It was submitted that the decision of the trial court in setting aside the garnishee order absolute was predicated on the availability of the existing law by virtue of section 315(1(b) of the 1999 constitution of the Federal Republic of Nigeria. This is because the Sheriffs and Civil process Law; and state Proceedings Edict had their validity by virtue of the existing law. Consequently the two laws will be reproduced thus:-
Section 8(3) of the State Proceedings Edict (Law) of Benue State 1988, 35 applicable in Kogi State provides thus:-
“No garnishee shall lie or be commenced against government without the consent of the Attorney-General.”
While Section 84(1) of the Sheriffs and Civil Process Law says:-
“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 Section 83 unless consent to such attachment is first obtained from the Attorney-General 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.”
The learned trial judge understood the two pieces of legislation as preventing him from making a decree nisi absolute without first obtaining, by the applicant, now appellant, the consent of the Attorney-General of the State.
He considered the two legislations as condition precedent for making order absolute. He did not comment on whether or not the two pieces of legislation as contrary to the provisions of Sections 6, 236, 251 of the constitution as well as section 2(1) and (2) of Decree No.1 of 1984. The Appellants complaint is that the learned trial judge should not have accepted the constitutionality of the Edict and the Sheriffs and Civil Laws of that State. Both Laws should have been declared null and void on the ground that they both go against the clear provisions of Section 287(3) of the 1999 Constitution.
According to the Appellants Counsel the words or language of Section 287(3) of the 1999 Constitution are clear, unambiguous and mandatory, it admits of but one meaning, that is, that the decisions or judgments of a High Court and of all other courts of Law established by the Constitution shall be enforced in any part of the country by all authorities and persons.
It is further contended, with some force, that Section 287(3) of the said 1999 Constitution does not make the consent of Attorney-General a pre-condition to the enforcement of a judgment of a High Court hence the provisions of the aforesaid Kogi State Laws, he submitted, derogate from the provisions of section 287(3) and the principle of rule of law as enshrined in Section 36(1) of the 1999 Constitution.
Learned Counsel argued on page 4 of their Brief that the words or language of Section 287(3) of the 1999 Constitution being very clear and un-ambiguous must be given their plain and literal meaning. See the case of A.G of Bendel State vs. A.G of the Federation (lS81) 10 SC. page 1 at pages 132-134 where the Supreme Court … per Obaseki JSC says:-
“The language of the Constitution where clear and unambiguous must be given its plain and evident meaning, words are the common signs that mankind make use of the declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly there is no occasion to have recourse to any other means of interpretation.”
I think it goes without saying and it is also an elementary knowledge that the constitution of this country is supreme and also superior to the aforesaid Kogi State Laws i.e., The State Proceedings Edict of 1988 and the Sheriffs and Civil Process Law. It is also trite law that needs no further authority to back it up, that any law or Edict which is in direct conflict or inconsistent with Section 267 (3) of the 1999 Constitution is null and void to the extent of inconsistency. I refer to Section 315(3) and Section 1(3) of the 1999 Constitution.
Learned Counsel for the Appellant attacked the decision of the trial court on another angle, that is on the lack of equality of the parties before the court.
It was his submission that the principle of rule of law as enshrined in section 36(1) of the 1999 Constitution connotes equality of parties or litigants before the law. There will be no equality at all before the law if the Appellant is required by the aforesaid Kogi State Laws to obtain the consent of Attorney General of Kogi State (who is the 2nd Respondent and therefore a party to this suit) before the Appellant, can enforce the judgment of the High court against the Kogi State Government. This will tantamount to the Appellant begging his adversary before enforcing the judgment. (underlinings mine for clarity).
Furthermore, Oputa JSC has an occasion to comment on the rule of law as enshrined in section 36(1) of the 1999 Constitution of Federal Republic of Nigeria as follows:- The Rule of Law Presupposes:-
- That the State (including the Lagos State Government is subject to the law.
- That the judiciary is a necessary Agency of the Rule of Law.
- That Governments (including the Lagos State Government) should respect the right of individual citizens under the rules of law.
- That to the Judiciary is asssigned both by the Rule of law and by our Constitution the determination of “all actions and proceedings relating to matters in dispute between persons or between Government or an Authority and any person in Nigeria.”
See the Military Governor of Lagos State iii 2 Ors. v. Chief Emeka Odumegwu Ogukwu &. 1 Ors. (1986) 1 NWLR (part 18) page 621 at 647.
The appellant further contended that section 6(1) 6(11)(b)of the 1999 Constitution reenforces the above observation of the learned justice of the Supreme Court.
Counsel then submitted that once the High Court has determined the legal rights of litigants in accordance with section 6 (6) (b) of the 1999 Constitution the Attorney-General has no role to play in the enforcement of such judgment hence the provisions of the Kogi State Laws which make the consent of Attorney-General a precondition to the enforcement of such judgment are contrary to section 36(1) of the 1999 Constitution and the principle of rule of law and therefore null and void.
Learned Counsel continued and submitted that the legal right of the Appellant having been determined by the High Court No.2 Lokoja on the 18th October, 2000 (which judgment the 1st and 2nd Respondent have not appealed against up to date) the Appellant was right to have proceeded under section 287(3) of the 1999 Constitution to enforce such legal right without seeking the consent of the Attorney-General who is the Appellant’s adversary.
The Appellant’s Counsel further argued that it will amount to the Attorney-General being a judge in his own cause if the Appellant is required to obtain the consent of Attorney-General (who is a party to this suit) before he can levy execution and therefore contrary to One of the pillars of fair hearing – nemo debete esse judex in propia causa – He relied On the case of OTAPO & ORS. VS. SUNMONU &ORS. (1987) 5 SCNJ page 57 AT PAGE 96 LINES 19-35 per Oputa JSC.
Learned Counsel submitted that judgment given by the High Court as far back as 18th October, 2000 should not be illusory but ought to have its consequences. See the case of Military Governor of Lagos State vs. Chief Emekn Odumegwu Ojukwu Supra page 62.1at page 643 where Oputa JSC held as follows:-
“1. A judgment or ruling of a competent court ought not to be illusory, but ought to have its consequences.
One consequence of the order of the court of Appeal dated 13/11/85 is the restoration of Chief Ojukwu to his residence at No. 29 Queen’s Drive. The applicants by their delaying tactics have so far made their order illusory.”
On page 7 of their Brief learned Counsel respectfully submitted that the learned trial judge was wrong to have set aside the garnishee order absolute solely for want of Attorney-General’s consent as per section 8(3) and section 84(1) of the State Proceeding Edict and Sheriffs and Civil Process Law when such requirement or pre-condition is unconstitutional having regard to section 287(3) of the 1999 Constitution of the Federal Republic of Nigeria.
This error of law has occasioned a substantial mis-carriage of justice with the result that the Appellant who has a judgment entered in his favour and which judgment the 1st and 2nd Respondents have not appealed against has not been able to reap the fruits of the judgment up to date…
It is a trite law, Counsel further submits that a decision on any point will be reversed by appellate where the error of law occasions a substantial mis-carriage of justice. See the case of Union Bank of Nigeria Ltd. vs. Professor Albert Ozigi (1994) 3 SCNJ page 42/57 paragraphs 25-30.
In the case of Jallo vs. Military Governor of Kano State & Anor (1991) 5 NWLR (part 194) page 754/784 Ogundare JCA as he then was observed on the duty of an Attorney-General where lawful judgment has been obtained against the government or its agencies as follows:-
“Under the new dispensation which has also been enshrined in the 1989 Constitution, it ought to be the duty of the Attorney-General, Federal or State to consult quickly with the Minister/Commissioner of Finance or Budget to provide funds to satisfy judgment debts lawfully obtained against the State.
No Attorney-General worth his salt should fold his arms and do nothing when the State is a judgment debtor.”
It was in the light of the above observation of the court of appeal that the Appellant’s solicitors wrote a letter to the Attorney-General of Kogi State on the 18th October, 2000 immediately the trial court gave judgment and urged him to consult with the Kogi state Government quickly to provide the funds to satisfy the judgment debt against the Kogi State Government. Counsel refers to page 85 of the Record of Proceedings.
Not only that, Counsel added that the State Chief Judge Hon. Justice Umaru Eric wrote a letter advising the Attorney-General to contact the Governor with the view to paying the judgment debt. He refers to page 95 of the record of proceedings.
He then urged this court to allow the appeal and to restore the order absolute of the trial court dated 12th July, 2001.
Learned Counsel for the 1st and 2nd Respondent argued that this appeal turns on a narrow compass and that is the validity of section 8(3) of the State proceedings Edict, 1988 of Benue State (Applicable to Kogi State) and Section 84 (1) of the Sheriff and Civil Process law of Northern Nigeria (also applicable in Kogi State) in view of sections 6 (6) 287(3) section 1(3) and section 15(1) (b) of the 1999 Constitution.
He submitted that it is clear that both the 1988 Edict and the Sheriff and Civil Process law created a condition precedent to the initiation or commencement of Garnishee Proceedings. This does not necessarily mean that the Appellant’s right of access to court guaranteed under the 1999 Constitution has been inhibited or feterred. He relied on the case of Obaba vs. Military Governor of Kwara State & Ors. (1994) 4 SCNJ where the Supreme Court held that; requirement to pay a nonrefundable deposit of N10,000.00 in the Kwara State Edict NO.3 of 1988 by a Plaintiff wishing to challenge the appointment of a Chief before commencing an action, does not contradict section 6 (6) (b) of the 1979 Constitution. Counsel further relied on the following cases:-
- Akuleziri vs. Okenwa (2001 FWLR (PART 35) 604/636., 2: Ibidunmi Fafunke vs. Thomson John & Ors. 11 NLR.106.
- Yesufu Ojo vs. B.A. Williams& Anor. 11 NLR 163; 4. Tukur vs. Government of Taraba State (1997) 6 SCNJ 81 at 108-109; 5. Fumudo vs. Abaro (1991) 9 NWLR (part 214) 210; and 6.Oba Jacob Oyedipo & Ors. vs. Chief J.D. Oyinloye (1987) 2 SCNJ 53.
Learned Counsel for the Respondents contended that it is common knowledge that there is a clear onus on the part of the Attorney-General to perform a public duty for which he can be compelled. It is therefore erroneous on the part of the Appellant to argue that the Attorney-General will not do his duty when Appellant has not even approached the Attorney- General to perform such a duty.
He urged this court to dismiss this appeal because:-
- Section 8(3) of the State proceedings Edict of 1988 and Section 84(1) of the Sheriff and Civil Process Law are not inconsistent with section 287(3) of the 1999 Constitution.
- Appellant did not fullfill a condition precedent before instituting the Garnishee proceedings.
The 3rd Respondent ganishee (First Bank of Nigeria PLC) was ordered by the trial court to settle the judgment creditor from the money standing in the credit of the Kogi State Government in possession and custody of that Bank. This order was made absolute. This ganishee Respondent thereafter applied to the trial court to act aside the order Garnishee Absolute on the round of nullity the consent of the Attorney-General not having been obtained. (underlinings mine for clearity)
Learned Counsel for the Garnishee 3rd Respondent Mr. Ajewole, argued that Section 287(3) of the Constitution of the Federal Republic of Nigeria 1999 only provides in principle for enforcement of decisions. The provision is not self-executing in that it does not provide for the mode or procedure of enforcement of decisions. It is left to the appropriate organ of government to fill the gap by way of rules or procedural law. He cites in support the case of ISHOLA VS. AJIBOYE (1994) 7-8 SCNJ (part 1) 1 at 33-37. He submitted therefore that the provisions of the 1999 Constitution on courts like the other previous Constitutions it remained largely as legal frame works that are not self-executing. They require enabling law to bring them into effect e.g. the High Court Law in the case of State High Court.
Counsel further submits that all issues relating to execution and enforcement of decrees or judgments are matters of procedure, and in-so-far as they relate to State High Court they will come under Section 27 of the Constitution, He-continued and submitted that the Kogi State House of Assembly is competent to make laws to regulate the practice and procedure of the State High Court including procedure for execution or enforcement of judgment – JALLO VS. MILITARY GOVERNOR OF KANO STATE (1991) 5 NWLR (PART 194) 754/764
Learned Counsel submits in the alternative that Sections 84 of the Sheriffs and Civil Process Act cap. 401 Laws of the Federation. 1990 is in pari material with Section 84 of the Sheriffs and Civil Process Law Cap 123, Laws of Northern Nigeria 1963, applicable in Kogi State, and both are existing Laws under Section 315 of the 1999 Constitution. It was the counsel’s submission that the appellant, based on the Sheriffs and Civil Proeedure Law section 84 thereof, requires the consent of the Kogi State Attorney-General before an order of attachment vide garnishee proceeding could be granted in his favour as the money sought to be attached was under the control of a public officer.
Learned Counsel submitted that the trial court was right in setting aside its order absolute. That being the case it does not matter under which of the laws the judge acted. Counsel further submitted that “this is because if a relief or remedy is provided for by a written law (or by the common law or in equity) that relief or remedy if properly claimed, cannot be deemed simply because the Respondent had applied for it under the wrong law. I submit that the Garnishee/Respondent properly claimed the relief of setting aside before the trial court.”
He then urged this court to hold that the trial court was right in setting aside its orders. He then cited in support the case of Joseph Falobi v. Elizabeth Falobi (1976) 1 NWLR 169/177.
On the issue of fair hearing, learned counsel for the Garnishee Respondent Submitted that the requirement of obtaining the consent of the Attorney-General before attaching money by Garnishee proceedings does not in any way contravene the provisions of section 36(1) of the Constitution. This is because, according to him, the process has an in-built mechanism that affords the parties to be heard before an order is made.
Learned Counsel again contended that the issue that the requirement of the consent of the Attorney-General is inhibitory to the reaping the fruit of judgment by successful party cannot be correct. He then submitted that the requirement merely prescribes the procedure to reap the fruit of judgment and not an inhibition. He supported his submission with the Supreme Court decision in the case of Obaba vs. Military Governor of Kwara State (1994) 4 SCNJ 121 at 128-129.
With regard to the issue of equality before the law, Counsel argued that the principle envisages the equality of parties in the application of a giving law which was the case before the trial court. The requirement of the Attorney-General’s consent is not a product of inequality but a public policy aimed at protecting the common wealth. I deliberately reproduced the contentions and the submissions of all the counsel vis-a-vis the solitary issue formulated with the hope that I will leave no stone unturned.
Now having considered the submissions of the Counsel I wish to state that the general common law position was that in order to protect the States certain pieces of legislation were necessary. The trend that was vague then was that no country allowed execution of judgments against the State. It was the law then also that the State could not be allowed to be sued in tort. The king can do no wrong. The principle of “rex non potest peccare” was well known and freely digested and applied.
Courts were then regarded as Kings Courts. Naturally one cannot expect judgments obtained by the individual servants to be enforced against the King in his own court. Clearly the crown enjoys immunity from legal action and could not be impleaded in its own court for the tortious acts of its servants. In 1958 the said principle, the State could do no wrong was fully made part of the law of this country by virtue of section 45(1) of the Interpretation Act (Cap 89) Laws of the Federation and Lagos, 1958.
That principle, surprisingly was still the law in Nigeria even though it was since abolished in England by promulgation of the Crown Proceedings Act 1947. This principle of State Immunity from tortious liability was further affirmed to be part of this country’s law by virtue of the petition of Rights Act cap 149 as amended in 1964.
This explains away how the common law principle prevailed. Issues of public nuisance, the pre-action notice and the payment of certificate fees before filing certain actions became the order of the day. In the same spirit of the King can do no wrong developed the idea that in order to protect the State individuals (Kings subjects/Servants cannot enforce judgments against the king (crown) in his own court without the consent of the Attorney-General. This attitude continued up to 1979 when the 1979 Constitution came into effect. I refer to RANSOME KUTI VS. ATTORNEY-GENERAL OF THE FEDERATION (1989) 2 NWLR (PART 6) 211.
All the cases before 1979 affirmed that any decisions of the High Court against the State cannot be enforced without the Fiat or Consent of the Attorney-General of the State. So also other related requirements and conditions, like payment of certain fees before one can file an action before the High Courts of the States, It was then held that such conditions or requirements are lawful and constitutional. See Obaba vs. Military Governor of Kwara State (1994) 4 SCNJ page 121 at 128 -129. In this case Belgore JSC held thus:-
“The Edict is a sort of double barrel proclamation of the Native Law and Custom of PANYAN on appointment of their Chief after necessary investigations have been made and the acceptance of Tradition Counsel of Oyis Recommendation approved the appointment of a new Chief. The Edict, to my mind, was properly made by the Military Governor of Kwara State as by doing so he has not contravened any part of the constitution.
Chieftaincy matters are within the powers of State Government and unless the exercise of the Powers is inconsistent with the Constitution as It Is now, it cannot be challenged. (underlinings mine for emphasis).
The High Court judge in the case now on appeal at page 113 Stated in discussing the case of Jallo Vs. Military Governor, Kano State supra,
” …. The Court of Appeal did not declare the Sheriffs and Civil process law especially as regards section 84 On the State Proceedings Edict – Section 8(3) as being inconsistent with Section 6, 236, 251 of the Constitution as well as section 2(1) and (2) of Decree No.1 of 1980 and therefore void. It follows therefore that section 84 of the Sheriffs and Civil Process Law and the State Proceedings Edict of 1988 do not shut out or inhibit the Constitutional rights of the judgment creditor/Respondent in taking steps to enforce the judgment provided he complies with the condition precedent, that is, by first seeking and obtaining the consent of the Attorney General.”
That was the understanding of the learned trial judge vis-a-vis the decision of the court of Appeal in the case of Jallo vs. Military Governor of Kano State. supra.
As I stated the position of the common law earlier on that the consent of the Attorney-General must be obtained before a writ of attachment can be issued. Whether the judgment sum is in the hands and control of a public officer or if it is in the custody of the Chief Registrar (i.e. in custodia legis). See the case of Yesufu Ojo vs. B.A. Williams and Anor, 11 NLR 163 and Ibidumni Fafunke vs. Thompson John. Ors. 11 NLR 106.
I am not unaware that it was contended that the mechanism of applying and obtaining the consent of the Attorney-General is a policy designed to prevent embarrassment to Government. It was also contended that it is a Policy aimed at giving notice to the Government to pay up its just debts which the principal Government functionaries may not be aware. These are noble policy and nobody will quarrel with them. However any policy which will leave the judgment creditor at the mercy of the Attorney-General in whose name actions against Governments are brought would amount to a judgment creditor seeking permission from his adversary, to allow him reap the fruits of his judgment to, enforce the judgment against him.
The position of the law has now changed. 1979 Constitution has brought a fundamental change in the body of the law of this country. The archaic principle of law that the King will do no wrong and that servants cannot enforce the judgments against the King in his own court appeared to be vacated by the said constitution. The present position is that it is the duty of the Attorney-General of the Federation or the State to ensure that the Federal or State Governments pay their lawful debts. The Attorney-General can no longer fold his arms for the judgment creditors to write him soliciting for his consent before he can enforce the judgment given in his favour.Ogundere JCA has this to say in the Case of Jallo vs. Military Governor of Kano State a. Anor (1991) 5 NWLR (part 194) pg 154/764 supra.
“Under the dispensation which has also been enshrined in the 1989 Constitution, it ought to be the duty of the Attorney-General, Federal or State to consult quickly with the Minister/Commissioner of Finance or Budget, to provide funds to satisfy judgment debts lawfully obtained against the State. No Attorney General worth his salt should fold his arms and do nothing when the State is a judgment debtor.”
That being the ease I agree that the judgment obtained by Appellant should not be Imaginary Or unreal. It should not be delusive and illusory. It must be real and ought to have its consequences. See case of the Military Governor of Lagos State v. Chief Emeka Ojukwo & Ors. (1986) 1 NWLR (Pt.18) Page 621/643 per Oputa JSC.”
After considering the submissions of counsel to all the parties and the relevant authorities, I hold that since the demand for the consent of the Attorney-General of the State is sort of procedural and administrative in nature and it has not made any violence to the constitution it can be tolerated and accepted. I hold that the requirement of the consent or authorization/permission of the Attorney-General of a State are necessary before judgment of a High Court can be properly enforced. The provisions of Section 8(3) of the State proceeding Edict, 1988 of Kogi State and Section 8(4) of the Sheriffs and Civil process law could not be said to be inconsistent with the relevant provisions of the 1999 constitution of the Federal Republic of Nigeria. That being the Case this court will have no reason to disturb the position taken by the trial court that failure of the judgment creditor to comply with the condition precedent, obtaining the consent of the Hon. Attorney-General, deprived that court of the jurisdiction to hear the application. The two legislations supra are not contrary to any of the provisions of the 1999 Constitution and I so hold. Consequently the appeal lacks merit and Is hereby dismissed with N2,000.00 costs to the Respondent.
This judgment has been slightly delayed because of bereavement of the member of the panel of justice on the appeal.
Other Citations: 2002)LCN/1223(CA)
