Appraisal of Applications Pending Appeal and Enforcement of Judgment in Nigeria

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Upon judgment, a celebration might attraction in opposition to the judgment or interlocutory order. It turns into essential to protect the res ante pending the dedication of the attraction. There are three forms of functions that may be made for upkeep of the established order pending attraction. They’re:

1. Keep of execution of judgment

2. Keep of proceedings

3. Injunction pending attraction

They are going to be handled beneath:

(A) STAY OF PROCEEDINGS

An order of keep of continuing is made to droop additional proceedings within the swimsuit pending the dedication of the attraction in opposition to an interlocutory ruling. Keep of continuing could also be granted the place a court docket states a case to a better court docket for its opinion, the place a celebration is in contempt of court docket, his proceedings could also be stayed till he’s purged of his contempt, the place events comply with take a matter to arbitration however one get together proceeds to court docket with out first submitting to arbitration

Process:

1. utilized for by a Movement on Discover supported with an affidavit setting forth the grounds upon which the applying is predicated and a written handle to be filed on the trial Courtroom Registry or Courtroom of Attraction however should be to the Excessive court docket until there are particular circumstances making it unimaginable. Or. 7 r. 4, Courtroom of Attraction Guidelines 2011. However when the court docket of Attraction has turn into seized of the matter as, when the attraction has been entered, the applying can solely be made to the Courtroom of Attraction. If the trial or Excessive Courtroom refuses the applying, the applicant might file an identical software to the Courtroom of Attraction inside 15 days of such refusal, annexed thereto licensed true copies of the discover of attraction in opposition to the ruling, the ruling in opposition to which an attraction has been lodged and the ruling refusing the applying. OR. 7r. 3 CA Guidelines

2. To oppose the Movement, the respondent is to file a counter affidavit and a written handle inside 7 days of the receipt of the Movement.

See O. 54 r. 1 of the Excessive Courtroom of Lagos State (Civil Process) Guidelines 2004 and O. 45 r. 1 of the Excessive Courtroom of the FCT Abuja (Civil Process) Guidelines 2004.

The circumstances for the grant of an software for keep of proceedings are:

1. there should be a legitimate attraction

2. that the grounds of attraction are more likely to succeed

3. that the steadiness of comfort is within the applicant’s favour

4. it’s to protect the character of the subject material

5. that safety or undertaken for its grant has been given or paid into the Courtroom

(B) METHODS FOR ENFORCEMENT AND EXECUTION OF JUDGMENT

There are a number of methods of implementing various kinds of judgments like cash judgments, land judgments, and different judgments. Thus –

1. A judgment for fee of cash could also 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 could also be enforced by a writ of possession, a writ of sequestration or a committal order.

3. A judgment for supply of products could also be enforced by a writ of particular supply or restitution of the products or their worth, a writ of sequestration, or an order of committal.

4. A judgment ordering or restraining the doing of an act could also be enforced by an order of committal or a writ of sequestration in opposition to the property of the disobedient individual – Tukur v. Authorities of Gongola State (supra).

After the judgment or order has been made, the judgment creditor will apply to the Registrar of the Courtroom which made the judgment or order for an acceptable means of execution to be issued. The place the legislation and/or guidelines execution can’t be issued with out depart, then the judgment creditor will first acquire depart earlier than making use of for the suitable means of execution to be issued.

After the applying, the Registrar shall situation the suitable writ which directs the Sheriff or Bailiff of court docket to implement. After execution, the Sheriff or Bailiff makes his returns to the Registrar.

Varieties or modes of implementing judgments

There are two sorts of judgments that are –

1. Financial judgments; and

2. Non-monetary judgments.

Technique of implementing cash judgments are as follows:

1. Writ of sequestration

2. Writ of fi. fa( fierrifacies)

3. Writ of execution

4. Garnishee proceedings

5. Writ of supply/ possession

Designation for Events below Enforcement of Judgment

The designation for events below enforcement of judgment is Judgment Creditor (the profitable get together) or Judgment Debtor (the unsuccessful get together).

Time for levying execution of judgment

It will depend on the kind of judgment as follows:

1. Cash judgments and others will be commenced 3 days after the supply of the judgment

2. Judgment of possession will be commenced 14 days after supply of the judgment

3. In every other case not specified by Legislation, with the depart of Courtroom.

The varied technique of implementing judgment shall be handled beneath:

That is utilized for to connect and sale movable properties, items and chattels of the judgment debtor besides the beddings, carrying apparels and dealing instruments to the worth of #10 that can not be connected. See S. 25 of the Sherriff and Civil Course of Act (SCPA) The gadgets and property of the judgment debtor should be seized and brought to Courtroom first and they are often bought 5 days after the seizure. See S. 29(1) of the SCPA.

The execution, although, directed in opposition to items and chattels, will be directed to immovable properties the place such items and chattels aren’t enough for the fee of the debt – part 44 of the Sheriffs and Civil Course of Act.

The appliance for the writ of fifa is by the use of movement on discover to the Excessive Courtroom and shall be supported by proof displaying –

a) What steps, if any, have already been taken to implement the judgment, and with what impact – Bayero v. FMBN Plc (1998) 2 NWLR (Pt. 538) 509 at 527;

b) What sum stays due below the judgment;

c) That no movable property of the judgment debtor, or none enough to fulfill the judgment debt, can with cheap diligence be discovered – Order IV Rule 16(2) of the Judgment (Enforcement) Guidelines; and

An affidavit of the judgment creditor displaying the possession of the property sought to be connected. Part 5 of the Sheriff and Civil Course of Act states that the judgment debtor’s property and chattels are bought and the proceeds of the sale utilised within the fee of the prices of the execution and any sum of cash payable to the judgment creditor below the judgment.

The cash realized from the proceeds of sale is then disposed as follows –

a) Cost to the Sheriff for any quantity due and unpaid for Sheriffs, Bailiffs, and appraisers’ charges and bills;

b) Cost to the auctioneer, if any, of the prescribed charges and bills of sale.

c) Cost to the judgment creditor of the quantity to be levied along with prices paid by him subsequent to the problem of writ, if any; and

d) Cost to the judgment debtor.

Be aware: A Justice of the Peace can implement its judgment by issuing a Writ of fi. fa however he can’t situation a Writ of execution (That is utilized for when the movable property seized weren’t sufficient to fulfill the judgment debt. See S. 44 of the SCPA. The aim is to connect the immovable property i. e. land, machines and many others to fulfill the debt which shall be bought after 15 days of the attachment).

The judgment Creditor in such a case should apply to the Excessive Courtroom for the grant of Writ of execution. See S. 44 of the SCPA.

(D) GARNISHEE PROCEEDINGS

It includes the attachment of debt due from a 3rd get together to the judgment debtor and the usage of the quantity of that debt in liquidating the judgment debt. Thus, the debt owed by the third get together to the judgment debtor, on being connected, is finally paid by the third get together to the judgment creditor – part 83 of the Sheriffs and Civil Course of Act.

As earlier mentioned, the next needs to be famous below garnishee proceedings –

i. The judgment creditor is named the garnishor;

ii. The third get together is named the garnishee; and

iii. The judgment debtor is named the judgment debtor

See S. 85 of the SCPA and UNION BANK PLC V. EKANEM.

Process:

1. The appliance is made by a Movement Ex Parte supported with an affidavit and a written handle.

2. After listening to the movement, the Courtroom might situation an Order nisi which is to be served on the Garnishee and the Judgment debtor inside 14 days

3. The garnishee is to return to Courtroom to refute or present trigger why the order nisi shouldn’t be made absolute inside 8 days by submitting an Affidavit to Present Trigger. The impact of an Order nisi is that the garnishee can’t pay the cash in his possession to the judgment debtor till the Order is made absolute or lastly determined. See S. O. 8 Judgment Enforcement Guidelines.

Beneath the Judgment (Enforcement) Guidelines, garnishee proceedings are commenced by the judgment creditor submitting within the court docket 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 swimsuit;

3. That the judgment continues to be wholly unhappy or nonetheless unhappy;

4. That the garnishee is indebted to the judgment debtor and the quantity so indebted;

5. The info that provides the court docket jurisdiction in opposition to the garnishee assuming that the court docket would have jurisdiction as between the judgment debtor and the garnishee – Type 25.

If the garnishee proceedings are taken in a court docket aside from the court docket wherein the judgment was given or made, an authorized true copy of the judgment should even be filed – Order VIII Rule 3(6) of the Judgments (Enforcement) Guidelines. The affidavit should state –

i. That judgment has been recovered;

ii. That it’s nonetheless unhappy and to what quantity; and

iii. That any individual is indebted to the judgment debtor and is throughout the state.

Non-monetary judgments

(E) Writ of possession

It’s utilized for to acquire land given in judgment.

Process:

1. By filling and submitting a praecipe type, Type 3

2. The Courtroom will then situation a Writ of execution.

The writ of possession shall not be issued till the expiration of time specified by the judgment for the judgment debtor to surrender possession. If the judgment didn’t specify any date, it shall solely be issued after the expiration of 14 days. O. IV r. 1

The implications of the failure of a judgment debtor to adjust to a judgment.

Any of the next could also be finished:

1. Judgment summons: It’s to deliver the judgment debtor to Courtroom to look at his means or capacity to pay the judgment debt. Whether it is discovered that he’s in a position to pay however he has refused, the next Orders of civil contempt or sequestration will be made. See S. 55 of the SCPA.

2. Order of committal to jail for contempt of Courtroom. See Type 48 and 49 of SCPA

Supply of products

A judgment for the supply of products shall be enforced by writ of supply in Type 67. The judgment creditor might by the identical writ or by a separate writ of fifa levy execution in opposition to the judgment debtor’s property for any sum of cash additionally awarded within the judgment – Order XI Rule 4 of the Judgment (Enforcement) Guidelines.

Order for execution of deeds and negotiable devices

The place a judgment directs any deed to be executed or any negotiable devices to be endorsed, and the judgment debtor neglects or refuses to conform, the judgment creditor might put together or endorse the deed or instrument in accordance with the judgment with the suitable stamping if required by legislation. The registrar of the court docket shall thereafter execute the deed or instrument as if similar had been executed or endorsed by the judgment debtor – Order XI Rule 11 of the Judgment (Enforcement) Guidelines.

Enforcement of judgment inter-State.

Process:

acquire a certificates of judgment from the Courtroom that give Judgment, write an software to the Registrar of the Courtroom within the different State the place it’s to be executed to register it in its Register of Nigerian Judgment assist the applying with an affidavit the judgment when registered is handled because the judgment of the Courtroom of the opposite State the Courtroom will levy execution first by writ of fi. fa (in opposition to the movable property) then by writ of execution. See S. 100-104 of the SCPA and ELECTRICAL MECHANICAL CONSTRUCTION LTD V. TOTAL NIG. & ANOR

Enforcement of international judgment in Nigeria

The Courtroom that has jurisdiction to entertain that is the Excessive Courts and it is just the judgments of superior Courts that may be enforced.

There are two procedures to be adopted:

(A) Motion at widespread Legislation

1. Institute an motion in Courtroom

2. Come by the use of Abstract Judgment / undefended checklist exhibiting the judgment

3. If the motion is profitable, the judgment turns into the judgment of the Nigerian Courtroom.

For the enforcement motion to achieve success, the international judgment should fulfill the next necessities –

1. The judgment should be last and conclusive;

2. The judgment should have been delivered by a court docket of competent jurisdiction;

3. The judgment should be for a particular sum of cash, offered that it isn’t cash recoverable as tax, effective or penalty; and

4. If the judgment is for a res aside from cash, the res should have been situate on the jurisdiction of the international court docket that gave the judgment, as on the time of supply – Peenok Ltd. V. Resort Presidential Ltd. (1982) 12 SC 1.

(B) By registration primarily based on the Overseas Judgment Reciprocal Act. That is to be finished inside 6 years of the supply of the international judgment.

The judgment debtor might apply to put aside the registration of a international judgment below any of the next –

1. That the judgment isn’t one to which Half I of the Act applies or that the Act has not been complied with;

2. That the Courtroom of Origin had no jurisdiction to provide the judgment – Peenok Ltd. v. Resort Presidential Ltd (supra).

3. That the judgment was obtained by fraud;

4. That the enforcement of the judgment could be opposite to public coverage in Nigeria;

5. That the applicant isn’t the individual vested with the rights below the judgment; and

6. That the judgment was in respect of a matter which was res judicataas on the date it was delivered within the international nation – part 6(2) and (3) of the Act.

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Source by Christian Jonathan Nwachukwu

The Editor