Appraisal of Functions Pending Attraction and Enforcement of Judgment in Nigeria

Appraisal of Functions Pending Attraction and Enforcement of Judgment in Nigeria

Upon judgment, a celebration could enchantment towards the judgment or interlocutory order. It turns into essential to protect the res ante pending the dedication of the enchantment. There are three kinds of purposes that may be made for upkeep of the established order pending enchantment. They’re:1. Keep of execution of judgment2. Keep of proceedings3. Injunction pending appealThey might be handled under:(A) STAY OF PROCEEDINGSAn order of keep of continuing is made to droop additional proceedings within the swimsuit pending the dedication of the enchantment towards an interlocutory ruling. Keep of continuing could also be granted the place a court docket states a case to the next 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 conform to take a matter to arbitration however one social gathering proceeds to court docket with out first submitting to arbitrationProcedure: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 tackle to be filed on the trial Courtroom Registry or Courtroom of Attraction however have to be to the Excessive court docket until there are particular circumstances making it unimaginable. Or. 7 r. four, Courtroom of Attraction Guidelines 2011. However when the court docket of Attraction has change into seized of the matter as, when the enchantment 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 could file an identical software to the Courtroom of Attraction inside 15 days of such refusal, annexed thereto licensed true copies of the discover of enchantment towards the ruling, the ruling towards which an enchantment has been lodged and the ruling refusing the applying. OR. 7r. three CA Rules2. To oppose the Movement, the respondent is to file a counter affidavit and a written tackle 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 situations for the grant of an software for keep of proceedings are:1. there have to be a legitimate appeal2. that the grounds of enchantment are more likely to succeed3. that the stability of comfort is within the applicant’s favour4. it’s to protect the character of the topic matter5. that safety or undertaken for its grant has been given or paid into the Courtroom(B) METHODS FOR ENFORCEMENT AND EXECUTION OF JUDGMENTThere are a number of methods of implementing several types of judgments like cash judgments, land judgments, and different judgments. Thus -1. A judgment for cost 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.three. 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.four. A judgment ordering or restraining the doing of an act could also be enforced by an order of committal or a writ of sequestration towards the property of the disobedient particular person – 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 applicable technique of execution to be issued. The place the regulation and/or guidelines execution can’t be issued with out go away, then the judgment creditor will first get hold of go away earlier than making use of for the suitable technique of execution to be issued.

After the applying, the Registrar shall subject 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 judgmentsThere are two sorts of judgments that are -1. Financial judgments; and2. Non-monetary judgments.Technique of implementing cash judgments are as follows:1. Writ of sequestration2. Writ of fi. fa( fierrifacies)three. Writ of execution4. Garnishee proceedings5. Writ of supply/ possessionDesignation for Events below Enforcement of JudgmentThe designation for events below enforcement of judgment is Judgment Creditor (the profitable social gathering) or Judgment Debtor (the unsuccessful social gathering).Time for levying execution of judgmentIt depends upon the kind of judgment as follows:1. Cash judgments and others could be commenced three days after the supply of the judgment2. Judgment of possession could be commenced 14 days after supply of the judgment3. In some other case not specified by Legislation, with the go away of Courtroom.The varied technique of implementing judgment might be handled under:(C) WRIT OF FI. FAThis 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 have to be seized and brought to Courtroom first and they are often offered 5 days after the seizure. See S. 29(1) of the SCPA.The execution, although, directed towards items and chattels, could be directed to immovable properties the place such items and chattels aren’t enough for the cost of the debt – part 44 of the Sheriffs and Civil Course of Act.The applying for the writ of fifa is by the use of movement on discover to the Excessive Courtroom and shall be supported by proof exhibiting -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 affordable diligence be discovered – Order IV Rule 16(2) of the Judgment (Enforcement) Guidelines; andAn affidavit of the judgment creditor exhibiting 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 offered and the proceeds of the sale utilised within the cost 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; andd) Cost to the judgment debtor.Observe: A Justice of the Peace can implement its judgment by issuing a Writ of fi. fa however he can not subject 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 so on to fulfill the debt which might be offered 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 PROCEEDINGSIt entails the attachment of debt due from a 3rd social gathering 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 social gathering to the judgment debtor, on being connected, is finally paid by the third social gathering to the judgment creditor – part 83 of the Sheriffs and Civil Course of Act.As earlier stated, the next must be famous below garnishee proceedings -i. The judgment creditor is named the garnishor;ii. The third social gathering is named the garnishee; andiii. The judgment debtor is named the judgment debtorSee S. 85 of the SCPA and UNION BANK PLC V. EKANEM.Process:1. The applying is made by a Movement Ex Parte supported with an affidavit and a written tackle.2. After listening to the movement, the Courtroom could subject an Order nisi which is to be served on the Garnishee and the Judgment debtor inside 14 days3. The garnishee is to return to Courtroom to refute or present trigger why the order nisi shouldn’t be made absolute inside eight days by submitting an Affidavit to Present Trigger. The impact of an Order nisi is that the garnishee can not pay the cash in his possession to the judgment debtor till the Order is made absolute or lastly determined. See S. O. eight Judgment Enforcement Guidelines.Below 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;three. That the judgment remains to be wholly unhappy or nonetheless unhappy;four. That the garnishee is indebted to the judgment debtor and the quantity so indebted;5. The details that offers the court docket jurisdiction towards the garnishee assuming that the court docket would have jurisdiction as between the judgment debtor and the garnishee – Kind 25.If the garnishee proceedings are taken in a court docket apart from the court docket by which the judgment was given or made, an authorized true copy of the judgment should even be filed – Order VIII Rule three(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; andiii. That any particular person is indebted to the judgment debtor and is throughout the state.Non-monetary judgments(E) Writ of possessionIt is utilized for to acquire land given in judgment.Process:1. By filling and submitting a praecipe type, Kind 32. The Courtroom will then subject 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. 1The penalties of the failure of a judgment debtor to adjust to a judgment.Any of the next could also be executed: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 could be made. See S. 55 of the SCPA.2. Order of committal to jail for contempt of Courtroom. See Kind 48 and 49 of SCPADelivery of goodsA judgment for the supply of products shall be enforced by writ of supply in Kind 67. The judgment creditor could by the identical writ or by a separate writ of fifa levy execution towards the judgment debtor’s property for any sum of cash additionally awarded within the judgment – Order XI Rule four of the Judgment (Enforcement) Guidelines.

Order for execution of deeds and negotiable instrumentsWhere 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 could put together or endorse the deed or instrument in accordance with the judgment with the suitable stamping if required by regulation. The registrar of the court docket shall thereafter execute the deed or instrument as if identical had been executed or endorsed by the judgment debtor – Order XI Rule 11 of the Judgment (Enforcement) Guidelines.Enforcement of judgment inter-State.Process:get hold of 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 (towards the movable property) then by writ of execution. See S. 100-104 of the SCPA and ELECTRICAL MECHANICAL CONSTRUCTION LTD V. TOTAL NIG. & ANOREnforcement of overseas judgment in NigeriaThe 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 frequent Law1. Institute an motion in Court2. Come by the use of Abstract Judgment / undefended listing exhibiting the judgment3. If the motion is profitable, the judgment turns into the judgment of the Nigerian Courtroom.For the enforcement motion to achieve success, the overseas judgment should fulfill the next necessities -1. The judgment have to be remaining and conclusive;2. The judgment should have been delivered by a court docket of competent jurisdiction;three. The judgment have to be for a particular sum of cash, supplied that it isn’t cash recoverable as tax, nice or penalty; and4. If the judgment is for a res apart from cash, the res should have been situate on the jurisdiction of the overseas 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 based mostly on the International Judgment Reciprocal Act. That is to be executed inside 6 years of the supply of the overseas judgment.The judgment debtor could apply to put aside the registration of a overseas judgment below any of the next -1. That the judgment will not be 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 present the judgment – Peenok Ltd. v. Resort Presidential Ltd (supra).three. That the judgment was obtained by fraud;four. That the enforcement of the judgment can be opposite to public coverage in Nigeria;5. That the applicant will not be the particular person vested with the rights below the judgment; and6. That the judgment was in respect of a matter which was res judicataas on the date it was delivered within the overseas nation – part 6(2) and (three) of the Act.

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