Judgment execution: Old problem, new solutions

The challenges of judgment execution cause untold harm to the economy and erode confidence in the judiciary. But lawyers believe there are ways to solve the problem, ROBERT EGBE writes.

On June 4, 2022, a bizarre incident occurred in Owerri, the Imo State capital.

The next day in Abuja, the President of the National Industrial Court of Nigeria (NICN), Justice Benedict Kanyip, ordered the closure of the Imo State division of the court starting from Monday, June 6, until further notice.

They were executing judgment in suit no: NICN/OW/16M/2022, between Prince Eze Madumere V Governor of Imo State, Zenith Bank Plc, the Attorney-General of Imo State and the Imo State Government.

The state government contested Madumere’s claim.

The Madumere case, though unusual, is one example of the complexities of enforcing judgments in Nigeria.

The case of the 34-year land reclamation battle between the Lagos State Government and Shangisha Landlord Association is another and, perhaps, a more typical example of the problem.

The Magodo land matter began on June 17, 1988, at the Lagos High Court and ended with a judgment in the landlords’ favour at the Supreme Court in 2012.

Ten years after the final ruling on the matter, the Lagos State Government – as part of efforts to comply with the judgment and following judgment creditors ‘split’ over the settlement plan – approached the apex court for “guidance and clarification” over the knotty issues of issuance of Certificate of Occupancy and joint possession of new allocations.

 

Specific enforcement problems

Both situations suggest that a litigant cannot boast of victory in a judicial process even where the court decides in his favour until such order or judgment is successfully enforced.

Apart from the examples above, other specific problems hinder the seamless execution of court judgments.

For instance, the constitution provides that the court or tribunal shall keep a record of proceedings and (in the case of a criminal proceeding), the defendant or any person authorised by him/her shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.

But, despite these legal provisions, Certified True Copies (CTCs) of judgments in most courts are not made available to the affected parties as and when due.

It often takes about three months or more to access a CTC of a judgment or ruling.

Also, the cost of executing a judgment, coupled with the problem of corruption among some court officials, is a major obstacle. A judgment creditor is usually required to provide funds for the successful execution of the judgment or order given in his/her favour.

The judgment creditor is expected to pay certain prescribed fees to the court’s registrar and provide logistic support to the sheriffs and the police to enable them to effect a successful execution. The sheriffs and police officers often take advantage of the judgment sum or value of the property to be attached and charge unnecessary fees to carry out their lawful responsibilities.

A corrupt sheriff could easily inform the judgment debtor of the pending execution and the judgment debtor may either remove the property from the jurisdiction or run to the court with an application for a stay of execution ahead of the writ of execution to be levied by the judgment creditor.

In cases where the attached property is to be auctioned, the auctioneer is expected to pay the gross proceeds to the court, including the payment for the sheriffs, bailiffs, appraisers and expenses of sale to the auctioneer.

In reality, after all the payments made to all the identified officers of the court, the amount left for the judgment creditor is often not sufficient to satisfy the judgment debt.

 

Privatisation of execution of court judgments  

Senior Advocate of Nigeria (SAN) Dr. Mike Ozekhome suggested a radical approach is required to solve the problem in the light of the “repeated failures of traditional structures and institutions (courts, their support staff and law enforcement agencies)”.

He proposed privatising the execution of judgments – with the Police still playing more or less the same roles, while Bailiff Units are disbanded.

He noted that this will require “a paradigm shift which will, in turn, entail legislative (if not constitutional) amendment. But, I believe it is worth exploring.

Collaboration with private sector players

Ozekhome noted that achieving this will require “robust engagement with, and the buy-in of, private sector players since they will be the drivers of the new regime (a brave new world!) that will displace the present chaotic and ineffective order.

“This solution does not underestimate the depth and breadth of the predictable institutional and intellectual pushback or resistance from traditional beneficiaries of the rotten system. This is always a factor to contend with, but the recommended new system embraces them with symbiotic engagement, hence the emphasis on an interface. But, this solution – any solution for that matter – deserves no less emphasis.”

The Silk conceded that there does not seem to be a precedent anywhere in the world “for this private enforcement of the will of the judicial arm of a Sovereign State”

Nevertheless, he noted that in the context of the larger society, the model of a Private-Public Partnership for executing public contracts has existed in Nigeria for decades.

Ozekhome said: “There are even institutional frameworks in place in the form of the Bureau for Public Enterprises and the Infrastructure Concession Regulatory Agency. The question is: are they appropriate or feasible in the Justice Sector? My answer is: why not – as long as it is restricted to only enforcement, as opposed to the adjudicatory aspect of the judiciary?

“No one is certainly advocating that justice should be sold to the highest bidder or that an already weak judiciary should be further weakened (thank you, Alexander Hamilton, in your Federalist Paper No. 75; to the effect that the judiciary is the weakest of the three arms of government because it possesses neither purse nor sword to enforce its judgment!) No. Rather, once a court has delivered a final judgment in respect of which there is no valid appeal or order of stay of execution, its enforcement becomes purely administrative. Surely, that explains why – under the present system – it is under the management and control of the Deputy Sheriff, and not the Judge who rendered the verdict, which is the subject of enforcement – at least, not directly.

 

How will privatisation of execution of judgments work?

Ozekhome ‘s proposal is for this Officer of the State (i.e., the Deputy Sheriff), “to hand over such duties to an efficient and effective private sector, profit-driven operator, to be selected by the judgment-creditor directly – through whatever process the enabling law eventually prescribes – who will thus be suitably incentivised to deliver the desired outcomes at a minimal cost.

“The merits of this option are obvious: it is time-lined, effective, transparent, accountable and result-oriented. By changing the process from one which is hall-marked by detestable Civil Service bureaucracy or red-tapism, to a new template completely under the control of the judgment-creditor, he or she will have no one to blame for service failure or underperformance. It will be down to his or her choice of ‘Enforcer’. It thus becomes a very private choice – a matter of contract – based purely on bargaining power.”

The lawyer noted that there will be genuine concerns “about whether the usual Nigerian factor will not ensure that a grossly distorted reality is foisted on the hapless public in the implementation of such a well-intentioned idea. Certainly, no one wants to replace one ‘monster’ with something even worse.

“That is why to avoid throwing out the baby with the bath-water, it is recommended that such Enforcement Contracts should be formally registered with the Deputy Sheriff – in addition to containing a mandatory clause that private enforcers are liable to the court in cases of negligence, undesired, shoddy or sub-optimal execution. This sanction presently exists under the Judgments (Enforcement) Rules, albeit only in instances of wrongful execution. It has proved to be grossly inadequate either to incentivise Bailiffs or to discourage inefficient/ineffective executions of judgments by them.

“With the perennial tales of woe told by judgment-creditors who remain stuck in the worst possible scenarios: their hope of finally achieving succour following prolonged litigation is often dashed to smithereens by the shenanigans of less-than-transparent Bailiffs, court officials and their Police collaborators.”

 

Human rights cases

One area where enforcement of judgments is particularly difficult is in human rights cases where law enforcement agencies are on the losing side, particularly where the court makes a financial award in the claimant’s favour.

This is because the Sheriff and Civil Processes Act stipulates that the consent of the Attorney-General of the Federation must be obtained 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 the appropriate officer or court is necessary if money is held by a public officer or the court.

The consent is mostly not given, although there are notable exceptions. For instance, the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) on April 27, 2018, gave consent to the payment of N135m as compensation for the killing of eight persons and the injuries caused to 11 others during a raid on an uncompleted building in the Apo/Gudu District of Abuja by men of the Department of State Services and the Army in September 2013.

This came over four years after the National Human Rights Commission (NHRC) made the recommendations to the Federal Government on April 7, 2014, and two years after the Economic Community of West African States (ECOWAS) court fined Nigeria $3.3million for the killing of the eight persons.

 

Judiciary needs an enforcement unit

A former Lagos State Solicitor-General, Mr. Lawal Pedro, SAN, suggested that the judiciary could exert its independence by creating a judgment enforcement unit to tackle the problem of judgment enforcement where government agencies are concerned.

He said: “The problem is a serious one but there is a way we can go around it. My suggestion is that the court should create what I call the 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 its own police unit. It is the Commissioner of Police of the court that should take responsibility for the enforcement of judgment whether it is against the police or any other security agency. That unit will also handle the issue of getting the various security agencies to pay their judgment debt especially when the right of appeal has been exhausted.”