Week 15 - Enforcement of Judgement and Application Pending Appeal

Meaning of enforcement of judgement?

It means a method whereby a coercive means is employed to ensure that judgement debtor complies with the judgment of the court. It is the way of forcing a judgement debtor to comply with the judgement of the court.

Parties to enforcement of judgment. See s 19(1) SCPA - At the stage of enforcement you have judgement creditor/applicant, and Judgement debtor/respondent
When does judgement of court become operative?See Or 35 r 2 Lag; Or 39 r 6&9 Abuja. Once judgement is given it becomes immediately operative

Where there is failure to comply, some coercive methods must be employed to ensure due compliance with judgment.

Laws governing enforcement

Enforcement of judgement of inferior courts established for the states are governed by the sheriffs & civil process laws & judgement enforcement rules.
Enforcement of judgement of superior courts of record i.e. the High courts & appellate courts are governed by the sheriffs & civil process act & judgement enforcement rules

Time for executing judgment

After expiration of the specified period of time given bycourt

Where no time is stipulated by the court:

For writ of possession it is 14 days from date of judgement. See Or 4 r 1(1) JER: If the judgement is in respect of giving up possession of land or property/ recovery of land, the JER says that the writ of possession cannot be issued until 14 days after the date of judgment where the judgment hasn’t stated a time
For any other processes of execution it will be 3 days after judgement was given. See or 4 r 1 (2) JER
Life span of a writ of execution is 12 months. Or 4 r 10 JER. After 12 months any writ of execution issued in favour of a judgement debtor, can be renewed subject to the judgement creditor making the necessary applications for renewal.

Application for issuance of execution processes is made to the registrar either:

By completing & filling praecipe form or
By a mere written application stating suit no, parties, date of judgement, nature of the process and amount of judgement – see Or 4 r 4 & 5 JER

Modes of enforcing judgment

There are various modes. The specific mode to use will depend on the type of judgement to be executed. E.g. is it a monetary judgement, or a recovery of possession or judgement against a judgement debtor who is refusing to pay.

Modes/ types:-

Writ of fierifacias
Garnishee proceedings

Judgement summons

Writ of sequestration
Instalment payment
Writ of possession

Writ of delivery
Execution of deeds or negotiable instruments

Enforcement of money judgement:

Can be enforced in any of the following ways:

Writ of fierifacias
Garnishee proceedings

Judgement summons

Writ of sequestration
Instalment payment

Writ of FieriFacias:

Otherwise known as writ of FIFA

It is the most commonly used. Directed to the sheriff requiring him to seize and sell enough of the judgement debtor’s goods to satisfy the judgement debt.

Once issued it is directed at the sheriff to go into the judgement debtor property and seize and sell enough of the judgement debtor goods/ property to satisfy the judgement debtor

It is therefore a writ of attachment

Procedure:

Judgement creditor shall file an application with the registrar for a writ of execution in Form 3 of 1^st schedule to SCPA. (praecipe Form). Or 4 r 15 JER

Where there was no date stated by the court, it shall not be issued until after the expiration of 3 days from day of judgement except with leave of court. See Or 4 r.1 (2) JER. Otherwise any execution carried out will be null and void, set aside and the person will be penalised in damages.

Property of judgement debtor that can be attached.

1^st step is to attach movable properties. S 25 SCPA

There are exceptions to the movable properties that can be attached. BEDDINGS, apparels, tools/instruments of his trade to the value of N10
Goods seized are kept in court premises .s 26 SCPA, or with a reasonable person as the court deems fit

What happens if his movable properties cannot be found within jurisdiction, or if found, is not sufficient to satisfy the judgement? See S 44 SCPA.

Note: you cant go to the second step without satisfying yourself that the first step has been completed

2^nd stage is execution against immovable properties

Mode of application against immovable properties

By motion on notice supported by affidavit and written address. The affidavit in support must statethe following:

The steps, if any, that has already been taken to enforce the judgement against the movable properties, and the effect.
What sum now remains due under the judgement

That there are no movable properties of the judgement debtor that can be attached, or that no sufficient one can reasonably be found to satisfy the judgement debt

Affidavit must contain evidence of proof of ownership of the property sought to be attached. So you must in the affidavit that you’re sure that he is owner of property located at xyz, make search at the land registry and make copies of his title documents

Application can only be made to the high court. See s 44 SCPA. Even if the judgement was given by the magistrate court. The high court is the only court that can give an order to proceed against his immovable properties
Attached goods shall not be sold until after expiration of at least 5 clear days after seizure unless they are perishable goods. S 29(1)SCPA Or 7 rule 1 JER
Attached immovable properties shall not be sold until after the expiration of 15 days of the attachment. Order 7 r 6 (1) JER. After sale after 15 days, whoever buys would have good title

BETWEEN

EDWARD OSIKE ………………….….JUDGEMENT CREDITOR/APPLICANT

AND

SUPREME UNUKEWGO……………..JUDGMENT DEBTOR/RESPONDENT

Prayer - “ an order for leave of this honourable court to attach the property / three bedroom duplex belonging to the judgment debtor situate at 2 law school drive, Victoria Island, Lagos in satisfaction of the judgement of the court”

GARNISHEE PROCEEDINGS

What is garnishee proceedings?

Parties to the proceedings are 3:

The judgement creditor/ Garnishor, the judgement debtor and the garnishee

What debts are attachable?

Debts that are due or accruing to the judgement debtor
Must be for sums certain. See s 83 SCPA; FLIONE V OLADIPO (1934) 11 NLR 168

Limitations: applicable only if the garnishee is indebted to the judgement debtor within jurisdiction of the court where judgement was given. S 83 SCPA; RICHARDSON V RICHARDSON (1927) probate p. 228

Consent of AG is required for garnishee proceedings against money in custody of a public officer. See s 84 (1) SCPA; ONJEWU V K.S.M.C.I (2003) 10 NWLR (PT. 827) P.40

Procedure:

Ex-parte application supported by affidavit and written address. The affidavit must state:-

Names, addresses & occupation of the parties
Date judgement was entered in the suit
That the judgement is still wholly unsatisfied or unpaid
That the garnishee is indebted to the judgement debtor and the amount of indebtedness
Garnishee is within jurisdiction

Note: In the motion ex-parte we are asking for leave of court to garnish the sum of Nxxx in the possession of the third party garnishee in satisfaction of the judgement debt - prayer.

On date fixed for hearing of ex- parte application, if court is satisfied it enters a garnishee order nisi in Form 26

Order nisi and affidavit in support shall be served to the judgement debtor and garnishee at least 14 days before the date fixed for hearing.

What is the effect of order nisi?

Where garnishee does not deny his indebtedness.

Payment into court within 8 days of service of order.

Soif the garnishee ( e.g. Skye bank) is not contesting the application they just need to pay within 8 days of service of the order on them and once they pay they would be discharged form any liability to the judgement debtor

However where Garnishee is disputing liability, he needs to file a counter affidavit to show cause why the order nisi should not be made absolute. E.g. that the man doesn’t have any money with them

Orders the court can make after hearing:

If court is convinced that the garnisheeis owing the judgement debtor it will make an order absolute. Execution can becarried out about garnishee if he fails to pay.
Application may be struck out.

Payment made by Garnishee is a total discharge of debts owed to judgement debtor

Parties to an application for Garnishee proceedings

BETWEEN

SUPREME UNUKEGWO…….JUDGEMENT CREDITOR/GARNISHOR/APPLICANT

AND

OSIKE EDWARD……………………JUDGMENT DEBTOR/RESPONDENT

AND

SKYE BANK………………………….GARNISHEE/ RESPONDENT

Orders sought

An order nisi attaching the sum of N20 million in the judgement debtor current account No ………..with the Garnishee in satisfaction of the judgement sum in this suit.
And for such further or other orders as this Honourable Court may deem fit to make in the circumstances.

JUDGMENT SUMMONS

What is a judgment summons?A means of summoning a judgment debtor to court where he has a means of paying and he has intentionally failed to pay.

Procedure:

Judgment creditor applies by filing praecipe Form 13 in the 1^st schedule of SCPA. See s.15(1) SCPA
Judgment summons should be filed in the judicial division in which the judgement debtor resides or carries on business. See s.15(2) SCPA

On the date fixed for hearing, the judgement debtor will beexamined on oath as to his means.

Orders that the court can make: -

An order committing the judgement debtor to prison for a term not exceeding 6 weeks if the court finds that the judgement debtor has the means to pay the judgement sum, but he intentionally defaulted in paying. S 65 SCPA
An order that the judgement debtors property be attached and sold;
An order for payment of the money by instalments;
An order discharging the judgment debtor from prison. S63 SCPA

GTB V INNOSEN ltd 2017 NWLR PT 1591 PG 181

Payment by instalment

What is instalment by payment? Where judgement has been given against a judgement but the judgement debtor is not able to pay the entire judgement sum by one

When can it be applied for?

Where the judgement debtor is willing to pay the judgment sum, but is unable to pay the total sum due at once or immediately. See Or 35 r 4 Lagos; Or 39 r 8 Abuja; ACB LTD V DOMINICO BUILDERS CO. LTD (1992) 2 NWLR (Pt 223) p 296.

Procedure:

Application is by motion on notice supported by affidavit stating good reasons & written address.

NOTE: That once default is made in one of the payment the entire sum becomes payable

ENFORCEMENT OF JUDGEMENTS THAT ARE NOT MONETARY

Execution of judgement for recovery of possession of land:

It is usually enforced by writ of possession.

Procedure for applying:

By fling praecipe form 3 in the 1^st schedule to SCPA
Can only be used to recover possession of land and not for sale of land

Note: Where a judgement creditor wants to recover possession as well as sums owed he can use writ of possession and writ of fifa. He can’tuse only writ of possession

Enforcement of judgement for delivery of goods:

It is enforced by filing writ of delivery in form 67
It is address to the sheriff requiring him to seize the goods wherever they may be found within the judicial division of the court and deliver same to the judgement creditor

Execution of deeds and Negotiable Instruments

When will it be applicable?

Procedure for enforcement

Judgementcreditor prepare the deed or negotiable instrument in accordance with the judgement of the court for stamping and execution by the registrar. See or 11 r 11 JER

Execution by writ of sequestration:

It is directed against the movable and immovable properties of a judgement debtor.

When can it be issued?

Where an order of warrant of arrest or committal to prison has been issued against a judgement debtor but he cannot be found;
Where he has been arrested and detained in custody for failing to obey the judgement of the court but in spite of this he still persists in his disobedience of the judgement. Or 11 r 9 JER

They can only attach not sell

Which court can issue the writ? Or 2 r 27 (1) JER High court

Procedure:

Application is by motion on notice supported by affidavit for the issue of writ of sequestration in form 69. See order 11 r 8 & 9 JER

Effect of order of sequestration – the judgement debtor is deprived of its and benefits

Enforcement of judgment of one state in another state:

Enforcement of judgement of a superior court of record in any part of the federation is guaranteed under the constitution – see s 287, 1999 const.

What law governs execution of judgement of superior courts outside the state where it was given? Sheriff and civil process act

Procedure:

Judgement creditor applies to registrar of the court where judgement was given for the issue of a certificate of judgement containing details/ particulars of the judgment. S 104
The registrar will issue the certificate of judgement which he must sign and seal
The judgement creditor or his counsel takes the certificate of judgement to the registrar of the court – co-ordinate jurisdiction in the state where judgement is to be executed
Theregistrar of the court will register the certificate of judgement in the register of judgments of that state. –S105 SCPA

Once the judgement is registered in the record it would be deemed that that is a judgment of that court outsidejurisdiction,can go ahead and use any means of execution. ** Nigerian book of judgment

Judgement creditor swears to an affidavit in support of registered certificate of judgement before he can execute judgement stating that:

The amount for which process is proposed to be issued is actually due and unpaid; or
An act ordered to be done remain undone; or
The person ordered to forebear for doing an act has disobeyed the order.

No process will be issued for more than is sworn to. s 107 SCPA

After which any means of execution can be used.

The registrar of that state where it was carried out must write a report stating to extent of the execution and forwarded to court where judgement came from.

Effect of registration of certificate of judgement. Judgement can be executed in that state using any of the methods for executing judgements

Report of execution to be written on the extent of execution. See Electrical &mechconst co ltd v Total Nigeria &anor

Enforcement of foreign judgement in Nigeria

Can be enforced in 2 ways:

By reciprocity
By action at common law

By reciprocity:

It is governed by the foreign judgements (reciprocalenforcements) Act 1961.
For judgements of a foreign country to be enforceable in Nigeria there must be reciprocal laws to that effect. See 12 FJ

It is not all judgements that the foreign judgment act applies to. The sum must be fixed and certain, it must not be for sum that has to do with levies, taxes, rates, fines, execution cannot be levied here. If the judgement is in foreign language it has to be interpreted to English

Note:

Judgements that are enforceable

Only judgments of superior courts of the foreign country are enforceable in Nigeria S 3 (1)
Judgments must be final and conclusive
Judgment sum must be fixed and certain, not for charges, rates, levies or fine - s 3 (2) FJ (RE

Procedure:

Foreign judgment creditor will applyto the High Court in Nigeriawithin 6 years after the judgement was given to have the judgementregistered s. 4 (1)
Application is by motion on notice supported by affidavit

What is the effect of judgment so registered?

What happens where the sum payable under the foreign judgment is in foreign currency s 4(4)- the Nigerian court will convert it Nigerian currency at the prevailing rate.

Judgement debtor may apply to set aside registration of the judgement on any of the following

Grounds:

Non compliance with the provisions of foreign judgement (RE) act
The judgement debtor did not receive notice of the proceedings in good time and counsel not defend the action

The foreign court lacked jurisdiction over the matter

Enforcement of the judgement will be contrary to public policy in Nigeria
That the judgement was obtained by fraud. s 6(1) FJRE
That the person that applied for registration of the judgement has no right to the judgement.

If application to set aside is refused ,**the judgement creditor may proceed to levy execution and use any method of execution

By action at common law:

Foreign judgement creditor will commence anaction in ahigh court in Nigeria and making the foreign judgement the cause of action.

No need for lengthy trial as the foreign judgment creditor can institute an action under the summary judgement procedure i.e. order 11 Lagos or undefended list Abuja

What judgements are enforceable? They are the same that enforceable. The judgment must be that of a superior court, final and conclusive , fixed sum and not rates, taxes or levies.

Enforcement of Nigerian judgement in a Foreign country

There must be reciprocal law on enforcement between the foreigncountry and Nigeria

Only the judgment of the High Court and other superior courts of record in Nigeria can be enforced in the foreign country

It must not be for taxes, fines,levies

Procedure:

Judgement creditor applies by motion on notice to the Nigerian court that gave the judgement for the court to issue a CTC of the judgement and a judgement certificate
Thereafter, the judgement creditor shall take the CTC of the judgement and judgement certificate of the court to the foreign country to register it and follow their rules on enforcement. s13 FJ (RE) Act

Consequences of non-compliance with court judgement/orders

Where a party fails to comply with the judgment/order of court, the court may order that he be committed toprison and retained in custody until he has complied with the order (otherwise known as order for committal for contempt of court)
Aim of committal: the essence of committal is to protect the integrity of the court and safeguard the rights of the parties in an action.

Procedure:

An application for committal of a judgement debtor to prison is usually made by the judgement creditor.

A copy of the order and notice in the form 48 of 1^st schedule to JER (i.e. notice of consequence of disobedience to order of court) will be served on judgement debtor/ defaulting party. Once he is served he must comply within 2 days of service of form 48, if he doesn’t then form 49 will be served on him.
If he still fails to obey the order, the registrar shall on application of the judgment creditor issue and serve on judgment debtor form 49 (notice to show cause why order of committal should not be made ) see or 9 rule 13 JER
Form 49 must be served not less than 2 clear days after service of form 48
On date fixed for hearing if court is satisfied that the judgement debtor has failed to obey court order, it may order that he be committed to prison. See Onagoruwa v Adeniji (1993)

Warrant of committal will be issued. However if the court is not satisfied the court will strike out the notice in form 49.

Our Firm

Quick Link

Our Policies

Contact Info