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22 Jan

CIVIL WEEK 15: ENFORCEMENT OF JUDGMENTS

WEEK 15

ENFORCEMENT OF JUDGMENT AND APPLICATIONS PENDING APPEAL.

:: INTRODUCTION: this relates to carrying the judgment of the court into effect-Tukur v Government of Gongola State. Section 287 CFRN upholds enforceability of SCourt, CoA, HC and FHC judgments.

The judgment should be complied immediately and execution can commence after 3 days from date of delivering the judgment (or earlier with leave of the court-Or 4 Judgment Enforcement Rules). Within 2 and 6 years for judgment against persons and inpersonam respectively beyond which leave of court would be required. 6 am – 6 pm.

Enforcement is usually to confer the benefits ordered to be given to the JC from the JD. Enforcement would not be needed in declaratory judgments or where there is voluntary compliance from the judgment debtor-Awoniyi v AMORC.

Once the court delivers judgment, it should be complied with forthwith (note exceptions in 39 Abuja Rules). Where there is no means of enforcing judgments, this demeans the integrity and respect of the courts/judicial system. Note the Sheriff and Civil Processes Act Cap. S6 LFN 2004, Sheriff and Civil Processes Laws of the States and the Judgment Enforcement Rules. For foreign judgments; FJ(RE)A and Principles of Common law.

:: METHODS/MODES FOR ENFORCEMENT AND EXECUTION. Would depend on the type of judgment. But first let’s understand the various modes:

– FIFA: authorisation (through motion on notice) for sheriff to seize goods/chattels, bills of exchange or securities belonging to the JD (excluding his (or his family’s) clothes and tools of trade to the value of N10[1]).

Such goods or chattels would be sold after 5 days (or earlier if perishable or JD consents in writing…) to discharge Judgment Debt and costs.

Where the goods and chattels are not enough, FIFA would extent to attach immovable property[2] which shall be sold after 15 days[3] (Section 46(1) SCPA). After 21 days with no one coming up to contest title, then a valid title is said to have been conferred to purchaser.

JC can go against one or more not necessarily all JDs Mucas Hospital v Fasuyi. Find our rationale and veracity.

Garnishee Proceedings[4]: 3rd party money meant for the judgment debtor is (first paid into court and then) given to the judgment creditor on an application ex parte supported by affidavit.

First by Garnishee order nisi is granted[5] allowing third party to come to court within 8 days to dispute the payment of the judgment debt (through affidavit to show cause). Beyond which the nisi becomes absolute. FIFA will be ordered against him 86.  Section 83 SCPA.

The third party is called ‘garnishee’ and the judgment creditor ‘garnishor’. The judgment debtor remains the judgment debtor. After paying the money to the Judgment Creditor, the garnishee becomes discharged of his debt to the judgment debtor.

Garnishee cannot be taken out against money in custody of public officer or CBN without AG’s consent. If in custodial egis, court’s consent must be sought[6] Section 84 SCPA. See Generally; NITEL v ICIC (Directory Publishers).

– JD Summons: requiring JD to come to court (in not less than 5 days time) and be examined on oath as to his means. Where he can pay but has refused, he can be committed (not exceeding 6 weeks), order for attachment, installmental payment, etc. where he refuses to attend; warrant for arrest may be issued.

Writ of Possession: to recover premises (other than landlord and tenant) at least after 14 days from judgment. Property be described in the WOP. Sheriff is empowered by it to enter premises, eject persons and deliver possession to the JC.

Writ of Delivery: Sheriff can seize JD’s goods and hand over to JC.

Execution of deed or negotiable instrument: where judgment directs JD to execute document (usually transferring title) but he refuses, JC may prepare the deed or instrument and tender in court and court executes in accordance with Or 11 R 11 JER.

Execution by Sequestration: commissioners appointed by court can enter immovable property of JD and collect rents and profits or detain movable property until JD purges himself of contempt.

Reversal order: by court for acts done in contravention of its order.

Committal Order: JD is committed to prison until he complies with judgment. He should first be served and come to court to show cause why he should not be committed.

The judgment creditor would apply to registrar for appropriate writ of execution or process to issue (and apply for leave of court where needed), registrar records in a book on the writ the precise time of making the application and issues appropriate writ 3 days after the day judgment was given, then the sheriff/bailiff execute and makes returns to the registrar.

In Tukur v Governor of Gongola State (1988) 1 NWLR (Pt 68) P 39. The court noted thus:

For Payment of Money/money judgment: Writ of Fiery Facias (FI FA), Garnishee, writ of Sequestration, Judgment Summons, order for committal.

For Possessing Land: Writ of Possession, Sequestration, or Committal. Magistrate cannot issue concerning immovable property.

For Delivery of Goods: Writ of Specific Delivery, Sequestration, Restitution of goods or their value, and Committal.

For Recovering Premises (Tenancy): Warrant of Possession (FORM N). Use FIFA to recover rent and mesne profit.

For Injunctions: commit the disobedient person or sequestrate his property.

All these are contained in the SCPA and Laws.

:: PROCESSES AND LIMITATIONS IN ENFORCEMENT OF INTERSTATE FOREIGN JUDGMENT.

Intra-State Judgment (i.e. still within the same state like lagos but different division): The registrar of issuing “Judicial Division/District A” sends the process (accompanied by warrant in Form 11 requesting and authorizing execution in Judicial Division/District B) for execution to registrar in Judicial Division B who upon receipt acts as if it were issued in his court. He enforce the judgment and pay over the money to Division A and report as in Form 12.

Inter-State Judgments: e.g. Lagos-Port-Harcourt. JC takes the certificate of Judgment (signed, sealed and issued by Registrar in State A) and registers same with the registrar of a court in State B (with similar jurisdiction) who enters the details in the Nigerian Register of Judgments after the JC has deposed to an affidavit stating the amount in the process is due but remains unpaid or act remains undone or unabated contrary to the order. Court may then deal with the order as though it were its own and JC may apply for appropriate execution process. After execution, registrar of enforcing court files report under seal notifying registrar of judgment court that the JDebt has been satisfied in whole or in part.

Enforcement of Foreign Judgments: may be either through an action at common law or by registration under the reciprocal enforcement statute.

By common law: JC sues in enforcing country with judgment as the cause of action. Provided foreign judgement is final, delivered by a competent superior court of record, for a definite sum of money (provided it is not tax, fine or penalty) and if the judgment is for a res other than money, such res should have been situate at the jurisdiction of the foreign court that gave the judgment as at the time of delivery.

By reciprocal enforcement: on the basis of reciprocity. Foreign Judgment Reciprocal Enforcement Act. Same conditions as above including res judicata or where foreign state does not accord reciprocity-Section 6 FJ(RE)A. The FJ would be registered within 6 years upon application to HC (by motion on notice with affidavit). Upon registration, HC can deal with the judgment as though it were its own. Note foreign currency be converted to rate prevailing then.

Note? Judgment Certificate-sc 104 SCPA. Registration of judgment certificate, cost of proceeding and execution sc 106 SCPA.

Non-compliance and consequences include judgment summons and committal to prison. Note Governor of Lagos State and Others v Chief Emeka Odumegwu Ojukwu and Others (1986) 1 NWLR Part 18 at Page 621.

Enforcement against government may need AG’s fiat (petition of Rights Act prevents execution against government-Tukur v Government of  Gongola) but CFRN says courts have wide powers under Section 6 therein.

:: INTERIM APPLICATIONS AND ORDERS PENDING APPEAL.

Orders made (made pursuant to legal power and inherent jurisdiction) to preserve the res and maintain status quo pending the determination of the appeal. Granted so as not to render the judgment on appeal nugatory if appellant succeeds[7].

– Order of stay of Execution: to restrain the judgment creditor from enforcing the executory[8] judgment given in his favour pending/until the determination of an appeal against the judgment. Or 54 Lagos. Without an order for stay of execution, the successful party can proceed to enforce judgment notwithstanding the filing of notice of appeal without more S 17 CoA Act. Lijadu v Lijadu. Order be granted where applicant can show special circumstances justifying its grant. e.g. appeal must raise substantial legal issues in an area of law that is novel or recondite, res needs to be preserved, order of court not be rendered nugatory, etc. NNPC v Fama Oil Ltd (2009) 12 NWLR (Pt. 1156) 462. SPDCN Ltd v Amadi (2011) 14 NWLR (pt. 1266) 157. Tukur v Government of Gongola State.

Application by motion on notice supported by affidavit stating grounds, written address. Then attach copy of Judgment appealed against, copy of notice and grounds of appeal (attach copy of ruling refusing the application if lower court refused and you going to appellate court).

– Order of Stay of Proceedings Pending Appeal: to suspend proceedings in the lower court until an appeal (usually of an interlocutory nature) on an issue is determined by the appellate court. United Spinners Ltd v Chattered Bank Ltd (2001) 14 NWLR (Pt. 732) 195. Application by motion on notice supported by affidavit stating grounds, written address-7 CAR.

If lower court refuses the application, bring to Court of Appeal within 15 days of the refusal attaching CTC of notice of appeal, ruling he is contesting, ruling o fthe court refusing the appeal, the application at the lower court with supporting affidavit. Or 7 R 3 CAR 2011.

Injunction Pending appeal: maintain status quo and preserve res pending/until determination of an appeal especially useful where there is no judgment yet or for declaratory judgment. Shodeinde and Others v Registered Board of Trustees of the Amadiya Movement in Islam. (1980) 1-2 SC 163. Still same considerations that would be consolidated later above. Like (as listed in Martins v Nicanner Foods 1988 2 NWLR 75 at 83), Government of Lagos State and Ors v Chief Emeka Odimegwu Ojukwu and ors (1988) 1 NWLR Part 18 at page 621. Like considering cahnces of applicants appeal succeeding, nature fo subject matter in dispute, justice fo the case, appeal not to be rendered nugatory. Nwabueze v Nwosu (1988) 4 NWLR (Pt. 723) 36 at 37, SPDCN v Amadi.

Application here is also by motion on notice, supported by affidavit setting out grounds upon which the applicant relies and written address.

[1] It appears sheriff should not seize goods worth less than 10 Naira.

[2] With leave of court. Magistrate cannot grant such leave. Application should be by motion on notice with affidavit and written address.

[3] Or earlier if requested in writing by JD. Sale shall be within 7 am and 8 pm and proceeds shall be used to pay bailiff and cover costs of sale, then offset judgment debt and balance given to judgment debtor.

[4] Usually banks holding the JD’s account.

[5] Stopping third party from paying out or disposing the asset. There is no right of appeal against an order nisi made exparte and an order absolute can only be set aside on appeal.

[6] Except money in the bank as money in the bank is on banker customer relationship which is debtor creditor except CBN.

[7] Considering whether there is an appeal (especially where it is one against jurisdiction, substantial grounds of appeal  which can affect the result of proceedings-Balogun v Balogun,. Fawehinmi v Akilu. Where order is to preserve res, balance of convenience, greater hardship if not granted, applicant can show exceptional circumstances, etc. Arbitration clause, where case is stated to a higher court, etc.

[8] Irrelevant if declaratory judgment. Apply for injunction pending appeal instead-SPDCN v Amadi.

Isochukwu

Quite eccentric really

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