Appraisal of Applications Pending allurement and Enforcement of Judgment i…
Upon judgment, a party may allurement against the judgment or interlocutory order. It becomes necessary to preserve the res ante pending the determination of the allurement. There are three types of applications that can be made for maintenance of the position quo pending allurement. They are:
1. Stay of execution of judgment
2. Stay of proceedings
3. Injunction pending allurement
They will be treated below:
(A) STAY OF PROCEEDINGS
An order of stay of proceeding is made to suspend further proceedings in the suit pending the determination of the allurement against an interlocutory ruling. Stay of proceeding may be granted where a court states a case to a higher court for its opinion, where a party is in contempt of court, his proceedings may be stayed until he is purged of his contempt, where parties agree to take a matter to arbitration but one party proceeds to court without first submitting to arbitration
1. applied for by a Motion on Notice supported with an affidavit setting forth the grounds upon which the application is based and a written address to be filed at the trial Court Registry or Court of allurement but must be to the High court unless there are special circumstances making it impossible. Or. 7 r. 4, Court of allurement Rules 2011. But when the court of allurement has become seized of the matter as, when the allurement has been entered, the application can only be made to the Court of allurement. If the trial or High Court refuses the application, the applicant may file a similar application to the Court of allurement within 15 days of such refusal, annexed thereto certified true copies of the notice of allurement against the ruling, the ruling against which an allurement has been lodged and the ruling refusing the application. OR. 7r. 3 CA Rules
2. To oppose the Motion, the respondent is to file a counter affidavit and a written address within 7 days of the receipt of the Motion.
See O. 54 r. 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 and O. 45 r. 1 of the High Court of the FCT Abuja (Civil Procedure) Rules 2004.
The conditions for the grant of an application for stay of proceedings are:
1. there must be a valid allurement
2. that the grounds of allurement are likely to succeed
3. that the balance of convenience is in the applicants favour
4. it is to preserve the character of the subject matter
5. that security or undertaken for its grant has been given or paid into the Court
(B) METHODS FOR ENFORCEMENT AND EXECUTION OF JUDGMENT
There are several ways of enforcing different types of judgments like money judgments, land judgments, and other judgments. consequently –
1. A judgment for payment of money may be enforced by writ offiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order of committal on a judgment debtor summons.
2. A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or a committal order.
3. A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution of the goods or their value, a writ of sequestration, or an order of committal.
4. A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the character of the disobedient person – Tukur v. Government of Gongola State (supra).
After the judgment or order has been made, the judgment creditor will apply to the Registrar of the Court which made the judgment or order for an appropriate course of action of execution to be issued. Where the law and/or rules execution cannot be issued without leave, then the judgment creditor will first acquire leave before applying for the appropriate course of action of execution to be issued.
After the application, the Registrar shall issue the appropriate writ which directs the Sheriff or Bailiff of court to enforce. After execution, the Sheriff or Bailiff makes his returns to the Registrar.
Kinds or modes of enforcing judgments
There are two kinds of judgments which are –
1. Monetary judgments; and
2. Non-monetary judgments.
method of enforcing money judgments are as follows:
1. Writ of sequestration
2. Writ of fi. fa( fierrifacies)
3. Writ of execution
4. Garnishee proceedings
5. Writ of delivery/ possession
Designation for Parties under Enforcement of Judgment
The designation for parties under enforcement of judgment is Judgment Creditor (the successful party) or Judgment Debtor (the unsuccessful party).
Time for levying execution of judgment
It depends on the kind of judgment as follows:
1. Money judgments and others can be commenced 3 days after the delivery of the judgment
2. Judgment of possession can be commenced 14 days after delivery of the judgment
3. In any other case not stated by Law, with the leave of Court.
The various method of enforcing judgment will be treated below:
(C) WRIT OF FI. FA
This is applied for to attach and sale movable similarities, goods and chattels of the judgment debtor except the beddings, wearing apparels and working tools to the value of #10 that cannot be attached. See S. 25 of the Sherriff and Civil course of action Act (SCPA) The items and character of the judgment debtor must be seized and taken to Court first and they can be sold 5 days after the seizure. See S. 29(1) of the SCPA.
The execution, though, directed against goods and chattels, can be directed to immovable similarities where such goods and chattels are not sufficient for the payment of the debt – section 44 of the Sheriffs and Civil course of action Act.
The application for the writ of fifa is by way of motion on notice to the High Court and shall be supported by evidence showing –
a) What steps, if any, have already been taken to enforce the judgment, and with what effect – Bayero v. FMBN Plc (1998) 2 NWLR (Pt. 538) 509 at 527;
b) What sum remains due under the judgment;
c) That no movable character of the judgment debtor, or none sufficient to satisfy the judgment debt, can with reasonable diligence be found – Order IV Rule 16(2) of the Judgment (Enforcement) Rules; and
An affidavit of the judgment creditor showing the ownership of the character sought to be attached. Section 5 of the Sheriff and Civil course of action Act states that the judgment debtors character and chattels are sold and the proceeds of the sale utilised in the payment of the costs of the execution and any sum of money payable to the judgment creditor under the judgment.
The money realized from the proceeds of sale is then disposed as follows –
a) Payment to the Sheriff for any amount due and unpaid for Sheriffs, Bailiffs, and appraisers fees and expenses;
b) Payment to the auctioneer, if any, of the prescribed fees and expenses of sale.
c) Payment to the judgment creditor of the amount to be levied together with costs paid by him later to the issue of writ, if any; and
d) Payment to the judgment debtor.
observe: A Magistrate can enforce its judgment by issuing a Writ of fi. fa but he cannot issue a Writ of execution (This is applied for when the movable character seized were not enough to satisfy the judgment debt. See S. 44 of the SCPA. The purpose is to attach the immovable character i. e. land, machines etc to satisfy the debt which will be sold after 15 days of the attachment).
The judgment Creditor in such a case must apply to the High Court for the grant of Writ of execution. See S. 44 of the SCPA.
(D) GARNISHEE PROCEEDINGS
It involves the attachment of debt due from a third party to the judgment debtor and the use of the amount of that debt in liquidating the judgment debt. consequently, the debt owed by the third party to the judgment debtor, on being attached, is ultimately paid by the third party to the judgment creditor – section 83 of the Sheriffs and Civil course of action Act.
As earlier said, the following should be noted under garnishee proceedings –
i. The judgment creditor is called the garnishor;
ii. The third party is called the garnishee; and
iii. The judgment debtor is called the judgment debtor
See S. 85 of the SCPA and UNION BANK PLC V. EKANEM.
1. The application is made by a Motion Ex Parte supported with an affidavit and a written address.
2. After hearing the motion, the Court may issue an Order nisi which is to be served on the Garnishee and the Judgment debtor within 14 days
3. The garnishee is to come to Court to refute or show cause why the order nisi should not be made absolute within 8 days by filing an Affidavit to Show Cause. The effect of an Order nisi is that the garnishee cannot pay the money in his possession to the judgment debtor until the Order is made absolute or finally decided. See S. O. 8 Judgment Enforcement Rules.
Under the Judgment (Enforcement) Rules, garnishee proceedings are commenced by the judgment creditor filing in the court registry –
1. An affidavit which shall state the names, addresses and occupations of the judgment creditor, judgment debtor, and the garnishee;
2. The date the judgment was recovered in suit;
3. That the judgment is nevertheless wholly unsatisfied or nevertheless unsatisfied;
4. That the garnishee is indebted to the judgment debtor and the amount so indebted;
5. The facts that gives the court jurisdiction against the garnishee assuming that the court would have jurisdiction as between the judgment debtor and the garnishee – Form 25.
If the garnishee proceedings are taken in a court other than the court in which the judgment was given or made, a certified true copy of the judgment must also be filed – Order VIII Rule 3(6) of the Judgments (Enforcement) Rules. The affidavit must state –
i. That judgment has been recovered;
ii. That it is nevertheless unsatisfied and to what amount; and
iii. That any person is indebted to the judgment debtor and is within the state.
(E) Writ of possession
It is applied for to acquire land given in judgment.
1. By filling and filing a praecipe form, Form 3
2. The Court will then issue a Writ of execution.
The writ of possession shall not be issued until the expiration of time stated by the judgment for the judgment debtor to give up possession. If the judgment did not specify any date, it shall only be issued after the expiration of 14 days. O. IV r. 1
The consequences of the failure of a judgment debtor to comply with a judgment.
Any of the following may be done:
1. Judgment summons: It is to bring the judgment debtor to Court to examine his method or ability to pay the judgment debt. If it is found that he is able to pay but he has refused, the following Orders of civil contempt or sequestration can be made. See S. 55 of the SCPA.
2. Order of committal to prison for contempt of Court. See Form 48 and 49 of SCPA
Delivery of goods
A judgment for the delivery of goods shall be enforced by writ of delivery in Form 67. The judgment creditor may by the same writ or by a separate writ of fifa levy execution against the judgment debtors character for any sum of money also awarded in the judgment – Order XI Rule 4 of the Judgment (Enforcement) Rules.
Order for execution of deeds and negotiable instruments
Where a judgment directs any deed to be executed or any negotiable instruments to be endorsed, and the judgment debtor neglects or refuses to comply, the judgment creditor may prepare or endorse the deed or instrument in accordance with the judgment with the appropriate stamping if required by law. The registrar of the court shall thereafter execute the deed or instrument as if same had been executed or endorsed by the judgment debtor – Order XI Rule 11 of the Judgment (Enforcement) Rules.
Enforcement of judgment inter-State.
acquire a certificate of judgment from the Court that give Judgment, write an application to the Registrar of the Court in the other State where it is to be executed to register it in its Register of Nigerian Judgment sustain the application with an affidavit the judgment when registered is treated as the judgment of the Court of the other State the Court will levy execution first by writ of fi. fa (against the movable character) then by writ of execution. See S. 100-104 of the SCPA and ELECTRICAL MECHANICAL CONSTRUCTION LTD V. TOTAL NIG. & ANOR
Enforcement of foreign judgment in Nigeria
The Court that has jurisdiction to entertain this is the High Courts and it is only the judgments of superior Courts that can be enforced.
There are two procedures to be followed:
(A) Action at shared Law
1. Institute an action in Court
2. Come by way of Summary Judgment / undefended list exhibiting the judgment
3. If the action is successful, the judgment becomes the judgment of the Nigerian Court.
For the enforcement action to be successful, the foreign judgment must satisfy the following requirements –
1. The judgment must be final and conclusive;
2. The judgment must have been delivered by a court of competent jurisdiction;
3. The judgment must be for a definite sum of money, provided that it is not money recoverable as tax, fine or penalty; and
4. If the judgment is for a res other than money, the res must have been situate at the jurisdiction of the foreign court that gave the judgment, as at the time of delivery – Peenok Ltd. V. Hotel Presidential Ltd. (1982) 12 SC 1.
(B) By registration based on the Foreign Judgment Reciprocal Act. This is to be done within 6 years of the delivery of the foreign judgment.
The judgment debtor may apply to set aside the registration of a foreign judgment under any of the following –
1. That the judgment is not one to which Part I of the Act applies or that the Act has not been complied with;
2. That the Court of Origin had no jurisdiction to give the judgment – Peenok Ltd. v. Hotel Presidential Ltd (supra).
3. That the judgment was obtained by fraud;
4. That the enforcement of the judgment would be contrary to public policy in Nigeria;
5. That the applicant is not the person vested with the rights under the judgment; and
6. That the judgment was in respect of a matter which was res judicataas at the date it was delivered in the foreign country – section 6(2) and (3) of the Act.