By Prof Mike Ozekhome SAN

Introduction

In Nigeria, the courts under the Constitution of Federal Republic of Nigeria, 1999 (Section 6, Constitution of Federal Republic of Nigeria, (as amended) 1999), has the power to hear and enter judgment in favour of a party to the matter, who has succeeded in proving his case. For any judgment delivered by a court of competent jurisdiction to become useful, it must be enforced, otherwise, the judgment cannot be used by the party to discharge the reliefs sought in the judgment by the court. There is no doubt, that the age long law is that a judgment of a Court of competent jurisdiction subsists until upset or sit aside on appeal. See NCC v. MOTOPHONE LTD & ANOR (2019) LPELR – 47401 (SC). This article shall focus on the role of the Courts in Nigeria, in the enforcement or execution of judgments delivered by the courts in Nigeria.

Therefore, in reviewing the role of the courts in the enforcement of judgement in Nigeria, we shall also review what courts and enforcement really mean, the types of judgments that is enforceable under Nigeria jurisprudence, the challenges encountered by courts in the enforcement of judgments, if any, and when a judgment is said to be fully and legally enforced or executed by a party to the judgment, through the courts.

What Is A Court?

A Court simply put is a forum, place or building where persons or corporate bodies litigants who have a dispute come to state facts and adduce evidence to prove their individual cases or allegations at trials. A court is constituted and established often by government as an adjudicating body or institution, with authority to decide legal disputes between and amongst disputants and running and managing the processes of justice in criminal and civil courts and adhering to the rule of law, equity and natural justice. The presiding person or groups of persons of these courts are usually called Magistrates, Judges, Justices and or Chairmen of Tribunals, which also serve as special courts.

There are various types of courts established under the 1999 Constitution of the Federal Republic of Nigeria [as Amended] 2011, [CFRN], from the Supreme Court of Nigeria (being the highest court of record) to customary courts.

Functions of Courts

The courts function as temples of justice, equity and natural law. The courts in Nigeria have many functions, including but not limited to the following:

1. Interpreting the law: The Courts interprets the Constitution and other laws, statutes and case law.

2. Protecting rights: The courts define citizens’ rights and protect vulnerable groups.

3. Resolving disputes: The courts settle disputes between parties through the application of rules and procedures.

4. Adjudicating: The courts determine guilt and administer punishment to those who have breached the law.

5. Guarding the Constitution: The courts are the guardians of the Constitution other laws, statutes and case law and upholds the rule of law.

6. Ensuring access to justice: The courts ensure that judicial services are accessible to everyone.

7. Upholding the rule of law: The courts protect and preserve the rule of law and ensures that laws are in accordance with the constitution and other higher laws.

8. Respecting human rights: The courts respect human rights and follows principles of fairness, equality, impartiality, legality and natural justice.

9. Delivering effective remedies: The courts deliver effective remedies and exercise their remit with the highest level of integrity.

10. Functions imposed by Statute Law: The courts exercises the role imposed by statutes, laws and the inherent powers of the courts.

What Is Judgment?

The word “judgement” can be termed as a pronouncement or a decision reached by a court over a matter that is pending before it. A person who judgment is entered in his favour is called the judgment creditor. The person whom a judgment is entered against is called the judgment debtor. It will suffice to say that judgment must be entered in favour of one party and not both the Claimant and Defendant. The Supreme Court defined the word ‘judgment’ in SARAKI & ANR. V. KOTOYE (1992) LPELR – 3016 (SC) as:

“A binding, authentic, official judicial determination of the Court in respect of the claims and in an action before it.”

Furthermore, UMANAH v. ATTAH & ORS, (2006) LPELR-3356(SC), Per NIKI TOBI, JSC, in defining what a judgment of court is, held that:

“The law is elementary that a minority judgment, as the name implies, is not the judgment of the court. The judgment of the court is the majority judgment.”

There are generally two types of judgments, to wit: Declaratory judgments and Executory judgments.

Declaratory judgments

A declaratory judgment is a court ruling that defines or clarifies the rights of the parties involved in a legal dispute. It’s a binding decision that can be used to resolve disputes, but it doesn’t require the court to order any action to be taken merely proclaims, or declares the existence of a legal relationship and does not contain any order which may be enforced against the judgment debtor. Furthermore, it is correct to state that a declaratory judgment is a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court.

It is a settled law that, whilst an executory judgment is capable of immediate execution, a declaratory judgment gives no such right. It merely declares the rights of the parties. The rights which it confers on the plaintiff can only become enforceable if another and subsequent judgment, albeit relying on the rights it declared, so decrees. Such a subsequent judgment conferring the power of execution is executor (See David Ogunlade v. Ezekiel Adeleye (1992) LPELR – 23040 (SC)). In such an instance, the date of enforceability will be the date of the subsequent (executory) judgment and not the earlier judgment, which is merely declaratory.

Executory Judgments

An executory judgment declares the respective rights of the parties and then proceeds to order the judgment debtor to act in a particular way, hence, it is enforceable. An executory judgment is a court order that is enforceable immediately after it is pronounced. It is also known as an enforceable judgment.

According to D.I. Efevwerhan¸ “every successful litigant desire to enjoy the fruit of his success, which is judgment.” Execution includes the process of carrying into effect the directions in a decree or judgment.

At this point, it may seem confusing for persons who are not well versed in law. However, this shall now digress to how a successful litigant can enforce a judgment against an unwilling judgment debtor.

Enforcement Of Judgment

Enforcement or execution of judgments can be defined as is defined as: “the process whereby a judgment or order of Court is enforced or given effect to according to law.”(See TUKUR v. GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR (PT. 592) AT 608). The execution of a judgment thus encompasses the enforcement of the various writs provided under the laws for giving effect to a judgment and the most comprehensive laws governing enforcement of judgment are the Sheriffs and Civil Process Act, Cap S6, LFN 2004 and the Judgment (Enforcement) Rules. (Ibid).

It is one thing to argue your case before a court successfully and get judgment. It is another thing for the judgment creditor to objectify the fruits of his/her judgment. Often times, aside the psychological gratification of the declaration of’ judgment in winning party’s favour, the winning party ends up with a barren trophy, and the tangible realization of the fruits of the victory becomes a mirage. It is often times resulted from either ignorance or from the tiredness of protracted trial.

Before we progress into enforcement of judgment, it is good we know the law applicable in the enforcement of judgement of Nigeria. Some of these laws are:

a. Judgment Enforcement Rules

b. The Sheriffs and Civil Processes Act

c. The 1999 Constitution

d. Foreign Judgments [Enforcement Reciprocal] Act 2004

e. Administration Criminal Justice Act 2015.

f. The Civil Procedure Rules (Federal or States) of the several courts.

There are different modes of enforcing executory Judgments, as enforcement is according to subject matter. Under enforcement of judgment, the modalities for enforcing monetary judgment are different from the modes of enforcing possessory judgments.

A) Money Judgments

Under monetary judgments, the judgment debtor is expected to pay the judgment creditor the awarded sum. This sum may be damages awarded or a debt the Judgment Debtor owed the Judgment Creditor, which may sometimes constitute the subject matter of the suit.
Modalities for Enforcement of Monetary judgments:

a. Writ of Fieri Facias

This is process is adopted by a judgment creditor in a court to levy execution against the property of the judgment debtor; whether movable or immovable. It should be noted that the property must be within the within the jurisdiction of the court where the judgment was delivered. Under the Enforcement of Judgment, it can only be issued at the expiration of three (3) days from the date of delivery of judgment (see Order IV Rule 1(2) of the Judgment Enforcement Rules).

The initial step is on the movable property of judgment debtor. However, it must be limited to the property that may be seized and exempts wearing apparel, bedding and tools and implements of the judgment debtor’s trade to the value of N10, which is unarguably inconsequential because of the devaluation of the naira (see Section 25 of the Sheriffs and Civil Processes Act).

Another point to note is that seized property cannot be sold until the expiration of 5 clear days from the date of seizure, unless the goods are of a perishable nature or the judgment debtor requests that they be sold in writing. Where the seized and sold property of the judgment debtor cannot settle the debt, his immovable property may be attached but, with the leave of the High Court first. However, before the said leave can be obtained from a court by the judgment creditor, he must first show sufficient proof from the funds generated by the movable property did not settle the debt and that the property he is seeking to attach actually belongs to the judgment debtor.

To be continued

Thought for the week

The Supreme Court is the last line of defense for the separation of powers and for the rights and liberties guaranteed by the Constitution. (Brett Kavanaugh).

By Prof Mike Ozekhome SAN

INTRODUCTION

In our last episode, we looked at the requirements of citizenship under the law, taking our cue from Sections 25, 26, 27, 28, 29, 30 and 31 (Chapter III) of the Constitution which recognizes different categories of Nigerian citizenship, namely by birth, naturalisation and registration and their incidents. Today, we shall consider whether Olisa Agbakoba’s case was rightly decided and also whether a passport issued to a citizen by birth can be withdrawn or forfeited. After which we shall take a cursory look at some laws- international and Nigerian laws guiding passport seizure, retention, revocation and deprivation, consider the human and legal implications as well as provide some remedies. Read on please.

Was Agbakoba’s Case Correctly Decided?

This is the million naira question. It can be seen that the apex court in the case affirmed the prerogative of the Minister of Internal Affairs under Section 5 of the Passport (Miscellaneous Provisions) Act to suspend, withhold or revoke the passport of a Nigeria on the ground, inter alia, of national interest. I believe that, to the extent that the Supreme Court did not consider whether that provision was a valid derogation from the fundamental right to freedom of movement within parameters of Sections 41(2) and 45 of the Constitution, that decision was given somewhat per incuriam.

I submit that, that right (and its concomitant right to a passport) cannot be derogated from merely on the vague, blanket ground of ‘public interest’ (as provided under Section 5 of the Act) but rather on any one or more (if not all) the grounds specifically set out in the Constitution i.e., in the interest of defence, public or defence, public safety, public order, public morality, public health or for the purpose of protecting of rights and freedom of other persons. While it can be argued that those grounds are all in the public interest. I believe their specification under the Constitution is to prevent abuse and to check arbitrariness.

I believe that this view would be consistent with the contra-profremtum rule of statutory interpretation which states that any statute which seeks to deprive a person of his proprietary rights must be construed strictly against the law-maker and sympathetically in favour of the citizen whose right is at stake. Such laws should be interpreted narrowly and if their provisions are not strictly observed in any given case, they will be struck down. See FCDA V SULEI (1994)3 NWLR pt. 332 pg 257 per Ogundare, JSC, PROVOST, LACOED V EDUN (2004) LPELR- 2929 (SC) Per Tobi, JSC and THE ADMINISTRATORS & EXECUTORS OF THE ESTATE OF GEN. SANI ABACHA V EKE-SPIFF (2009) LPELR-3152 (SC) PER Aderemi, JSC, at pg 41E-42B.

Can A Passport Issued To A Citizen By Birth Be Withdrawn Or Forfeited?

I believe this question is the most fundamental of all and is at the heart of the debate which is subject of this paper. This is because, if a person’s citizenship by birth can neither be forfeited nor taken away from him or by executive fiat, he or she ought not to be denied or deprived of the symbol of that status by the same or any other means except, of course, by personal choice (i.e., renunciation). In other words, I believe that the question is not so much about the invalidity of the provisions of Section 5(1) of the Passport (Miscellaneous Provisions) Act vis-a vis those of Sections 41 and 45 of the Constitution, (although this is crucial) but rather, of the unconstitutionality of any law which purports to empower any person whatsoever (including the president) to withhold, revoke or withdraw the passport of a citizen of Nigeria by birth on ANY GROUND other than those spelt out in section 45 of the Constitution.

The reason is simple: as stated earlier, if the President cannot deprive a citizen by Birth of his or her citizenship (as he can do in respect of citizens by naturalisation or registration under SECTION 30(1) AND (2) OF THE CONSTITUTION), he should not possess the power to withdraw or withhold the pre-eminent symbol of that status: his passport. If the President, as the CEO of the country (under Section 130 (3) of the Constitution) cannot do that, I believe that neither should any of his subordinates or even appointees (such as the Minister of Internal Affairs) in the manner in which Section 5(1) of the Passport (Miscellaneous Provisions) Act stipulates.
Summary

Nigerian Law

1. Constitutional Rights: The Nigerian Constitution guarantees the right to freedom of movement (Section 41) and the right to a passport (Section 42).
2. Passport Act: The Passport Act (1961) regulates passport issuance, revocation, and seizure.
3. Immigration Act: The Immigration Act (2015) empowers the Nigeria Immigration Service to seize and revoke passports.

International Law

1. Universal Declaration of Human Rights (UDHR): Article 13(2) guarantees the right to leave and return to one’s country.
2. International Covenant on Civil and Political Rights (ICCPR): Article 12(2) protects the right to freedom of movement.
3. African Charter on Human and Peoples’ Rights: Article 12(1) guarantees the right to freedom of movement.

Human Rights Implications

1. Right to Freedom of Movement: Passport seizures, retention, or revocation can restrict movement, violating this right.
2. Right to Nationality: Deprivation of a passport can lead to statelessness, violating the right to nationality.
3. Right to Family Life: Passport restrictions can separate families, violating the right to family life.
4. Right to Education and Work: Passport restrictions can limit access to education and employment opportunities.

Legal Implications

1. Administrative Justice: Passport seizures or revocation must follow due process, as outlined in the Nigerian Constitution.
2. Judicial Review: Affected individuals can seek judicial review of passport-related decisions.
3. International Obligations: Nigeria must uphold international human rights obligations, including those related to passport rights.

Remedies

1. Judicial Review: Challenge passport seizures or revocation in court.
2. Administrative Appeals: Appeal to relevant authorities, such as the Nigeria Immigration Service.
3. Human Rights Commission: File complaints with the National Human Rights Commission.
4. International Mechanisms: Petition international human rights bodies, such as the African Commission on Human and Peoples’ Rights.

Conclusion

A passport is a symbol of one’s citizenship. It is the pre-eminent marker which identifies its holder as a citizen of a particular country. While you can be a citizen without necessarily holding a passport, you cannot possess a passport unless you are citizen of a country: they are two sides of the same coin.

Our Constitution has covered the field of citizenship, vide Chapter III, Sections 25 to 32 thereof which recognises three categories of citizens by birth, by naturalisation and by registration. While the last two can be taken away by the President under the Constitution, the former cannot.

The Constitution empowers the President (vide Section 32) to make regulations prescribing matters required or necessary for effectuating or carrying out the provisions of that chapter, subject only to one condition: that any such regulation should be laid before the National Assembly. Crucially, there is no role for a Minister or any other person under the Constitution in this regard in terms of conferring or depriving a person of citizenship of Nigeria.
In other words, the Constitution has covered the field. Accordingly, to the extent that the National Assembly purports to empower the Minister of Internal Affairs to withdraw or cancel any passport issued to any person on the ground, inter alia, of public interest (vide Section 5(1) of the Passports (Miscellaneous Provisions) Act), that provision is not only otiose, it is ultra vires, invalid, null and void because it is inconsistent with the aforesaid constitutional provisions which specifically empower only the President to deprive a person of his citizenship. The mere fact that those clauses refer to ‘citizenship’ and not ‘passport’ is irrelevant; as previously submitted, the latter is but evidence of the former: you can’t have the latter without the former.

The power conferred on the Minister of Internal Affairs to revoke or withdraw passports under Section 5(1) of the Passports (Miscellaneous Provisions) Act, should, ideally, be conferred on the President. This would be consistent with the spirit and letters of Chapter III of the Constitution which clearly manifests an intention by the framers of the Constitution to confer on the President absolute control of the citizenship ecosystem – including, of course, passports. As the apex court famously held in OSADEBAY V. ATTN-GEN OF BENDEL STATE (1991) 1 NWLR Pt. 169 pg. 525, S.C, per Nnaemeka-Agu, JSC, “it cannot be presumed that the framers of the Constitution intended to confer a right with one hand and to take it away with the other”

The Constitution should be construed as a whole and its makers cannot possibly intend to set the President up against his own appointee. The Minister is not a bean-stalk planted by Jack: he cannot outgrow himself. Under the Constitution, only the President can deprive a person of his or her citizenship and then only in two instances: citizenship by naturalisation and citizenship by registration. Not by birth. If otherwise, it would mean that the President’s appointee or agent- the Minister is more powerful than the President, which would not be a travesty, it would be a constitutional aberration.

Once the Constitution has covered a legislative field, no other person, body or authority is permitted to legislate in respect of same subject matter: ATTORNEY GENERAL OF ABIA STATE V. ATTORNEY GENERAL OF THE FEDERATION (2002)6 NWLR PT.763 Pg 264 at 39q per Kutigi and Uwais, JSC and CJN. (The end).

Thought for the week

“As a global community, we face a choice. Do we want migration to be a source of prosperity and international solidarity, or a byword for inhumanity and social friction” (Antonio Guterres).

Prof Mike Ozekhome SAN

INTRODUCTION

We commenced this treatise last week addressing the legal and human rights implications of passport seizures, retention, revocation, and deprivation, focusing on their impact on freedom of movement. We also examined the constitutional right to movement under Nigerian law and whether the requirement for a passport is a justifiable restriction on this right. Today, we shall continue with same and later delve into and conclude with discussing whether withholding a passport infringes on citizenship or public safety concerns and explore the broader significance of a passport as evidence of identity and nationality. Please come with me.
What Are The Requirements Of Citizenship Under The Law?

The answer to this question is contained in the provisions of Sections 25, 26, 27, 28, 29, 30 and 31 (Chapter III) of the Constitution, which recognizes different categories of Nigerian citizenship, namely by birth, naturalisation and registration and their incidents. It is pertinent to mention that, apart from the other two categories of citizenship recognized by the Constitution, as aforesaid (i.e., by naturalization and by registration), the category of citizenship by birth provided for under section 25 of the Constitution clearly enjoys a superior status. This is because, unlike the other two, it cannot be taken away from any Nigerian who happens to fall within that class. This is clearly borne out by the provisions of Sections 28(1) and 30(2) of the Constitution, which expressly state, inter alia, that:
– Section 28(1): “a person shall forfeit forthwith his Nigerian citizenship if, not being a citizen of Nigeria by birth, he acquires or retains the citizenship or nationality of a country other than Nigeria, of which he is not a citizen by birth” and
Section 30(2). – “The President shall deprive a person other than a person who is a citizen of Nigeria by birth, of his citizenship, if he is satisfied from the records of proceedings of a court of law or other tribunal, or after due inquiry in accordance with regulations made by him, that-
(a) The person has shown himself by act or speech to be disloyal towards the Federal Republic of Nigeria; or
(b) The person has, during any war in which Nigeria was engaged unlawfully traded with the enemy or been engaged in or associated with any business that was … communicated with such enemy to the detriment of or with intent to cause damage to the interest of Nigeria”.

That being the case, I believe that it is curious for the Nigerian State to possess the capacity to deprive, withdraw, revoke or suspend the passports of Nigerian citizens by birth as was done (with the approval of the Supreme Court), in Director, DSS v AGBAKOBA, supra. Given its importance as virtually the only case on the issue, it is worthwhile to discuss it in extenso.

The Respondent, Olisa Agbakoba, was invited by the Netherlands Organization for International Development and Cooperation (NOVIB) to attend a conference which was scheduled to take place between 22nd and 25th April, 1992. On 21st April, 1992, he went to Murtala Muhammed International Airport, at Ikeja Lagos with a view to traveling to The Hague in the Netherlands. However, he could not board the plane because he was stopped by officers of the Nigerian State Security Service (SSS) who impounded his passport without giving any reason for the seizure. After fruitless efforts to regain the passport, the Respondent instituted a suit under the Fundamental Rights (Enforcement Procedure) Rules seeking inter alia:

“1. A Declaration that the forceful seizure of the applicant’s passport No. A 654141 by agents of the State Security Services (Sic) (1st Respondent herein) on April 21, 1992 is a gross violation of the applicant’s right to personal liberty, freedom of thought, freedom of expression and freedom of movement respectively guaranteed under Section 32, 35, 36 and 38 of the Constitution of the Federal Republic of Nigeria 1979 (as amended) and is accordingly unconstitutional and illegal.
2. An order of mandatory injunction directing the respondents to release applicant’s passport No. A 654141 to him forthwith.”

The application which was filed in the High Court of Lagos State went before Akinboboye J. who refused it on the ground that the Respondent failed to satisfy the court that the passport was his personal property, and that the passport referred to the holder as “the bearer” and not “the owner”. Aggrieved by the decision, the Respondent appealed to the Court of Appeal which allowed the appeal and granted the two reliefs earlier set out. Being dissatisfied with the Judgment, the Appellants appealed to the Supreme Court. The important issue which the court has to determine in the case was whether the seizure of the Respondent’s passport by officers of the S.S.S. was in contravention of his right to freedom of movement as guaranteed by Section 38 (1) of the 1979 Constitution which was then in force in Nigeria. In determining this issue the court necessarily had to decide whether possession of a passport is a right or a mere privilege which could be withdrawn by the Government in view of the decision of the trial court that the Respondent did not satisfy it that the passport was his personal property. At the Court of Appeal, Ayoola J.C.A (as he then was) who delivered the leading Judgment of that court had this to say on the point:

“In so far as passport is a certificate of identity and nationality and at the same time a request from one state to another to grant entry to the bearer, it stands to reason that a passport is normally an essential document in the exercise of the discretion by a foreign state, which at International law it has in the reception of aliens into its territory. To that extent a passport is normally an essential document for entry into foreign countries….I also hold that the possession of a passport in modern times makes exit out of Nigeria possible … the issue that follows from this conclusion is whether the possession of a passport or its withdrawal has any relevance to the constitutionally guaranteed freedom of movement, including the right of exit from Nigeria, with which this case is directly concerned….it can thus be seen that while the seizure of passport by a government agency such as the 1st Respondent can be interpreted as a direct expression of refusal of exit to the citizen, it is also a potent curb on the desire of the citizen to travel abroad and an evident clog on the exercise of his right of freedom of movement.”

Thus in the view of His Lordship there is a conflict in the statement endorsed on Nigerian Passports that the Passport remains the property of the Government of the Federal Republic of Nigeria and the right which accrues to every citizen to hold such a Passport. The consequence of a passport being the property of the Government is, according to His Lordship, that the holder cannot deal with it as he pleased. He cannot transfer, sell or otherwise dispose of it. If for instance he ceases to be a citizen of Nigeria, he has an obligation, if requested, to return it to the ‘owner’, and the Nigerian Government as the owner of the passport has a right to recover the passport from anyone else who is not entitled to hold it. His Lordship then concluded that:
“The freedom of exit guaranteed by our constitution cannot be exercised without a passport and that freedom enshrined in Section 38 (1) of the Constitution carries with it a Concomitant right of every Citizen of Nigeria to a passport.”

Although the Judgment of the Court of Appeal that the seizure of the Respondent’s Passport amounted to a violation of his right to travel abroad guaranteed by Section 38 (1) of the Constitution was upheld by the Supreme Court, the leading Judgment of the apex court delivered by UWAIS C.J.N adopted a different line of reasoning to arrive at the same conclusion. At page 352 of the report UWAIS, C.J.N said:

“In determining the issues in the present case, it is not, with respect, necessary to indulge in the academic exercise of whether the right to travel abroad is concomitant with the right to hold a passport. The real issue in contention here is not whether the respondent had a right to hold a passport. He in fact had a passport already but which was impounded by an official of the SSS. It is whether such an act by the official was legal and constitutional.”

The C.J.N opined that the official of the SSS concerned in the case had no power to impound or withdraw the Respondent’s passport in the manner he did. The impounding was, illegal since it violated the provisions of Section 38 Subsection (1) of the Constitution and Section 5 Subsection 1 of the Passport (Miscellaneous Provisions) Act. His Lordship held that the right to freedom of movement and the freedom to travel outside Nigeria is, according to guaranteed by the Constitution but the right to hold a passport was subject to the provisions of the Act.

The leading and majority Judgment of the court considered the question whether the right to travel abroad was concomitant with the right to hold a passport as posited by the Court of Appeal and the concurring Judgments of Ogundare, Ogwuegbu, and ONU, JJ.S.C agreed with the intermediate appellate court (per Ayoola, J.C.A as he then was) that the right to hold a passport was concomitant with the guaranteed right to travel abroad. Thus, to the extent that only three out of the seven Justices of the court that adjudicated over the case agreed with the Court of Appeal on this point, the view that the right to hold a passport is concomitant with the right of exit from Nigeria which was guaranteed by Section 38 (1) of the 1979 Constitution (now Section 41(1) of the 1999 Constitution) was an obiter dictum.

TO BE CONTINUED…

Thought for the week

“Life without liberty is like a body without spirit”. (Kahlil Gibran).