Enforcement of Judgment and Applications Pending Appeal By Bar. Ejiofor
ENFORCEMENT OF JUDGMENT: METHODS OF ENFORCEMENT AND EXECUTION, PROCESSES AND LIMITATIONS IN THE ENFORCEMENT OF INTERSTATE AND FOREIGN JUDGMENTS.
APPLICATIONS AND ORDERS PENDING APPEAL: WEBINAR PRESENTED BY IFEANYI EJIOFOR, ESQ. TO THE NIGERIAN LAW SCHOOL STUDENTS ON THE 2 ND DAY OF JUNE, 2020.
The term “Judgment” is a universal one covering a variety of decisions of various bodies and organizations. However, this discourse will cover only the judgment and/or orders of Courts of competent jurisdiction.
Judgment is defined as the Court’s final determination of the rights and obligations of the parties in a case. It includes an equitable decree and any order from which an appeal lies.
Further, judgment is defined in law to include the determination by a Court of competent jurisdiction on matters submitted to it or the act of determining, as in Courts of law, what is conformable to law and justice, also, the determination, decision or sentence of a Court or of a Judge. See AKPOVWOVWO & ORS V. EMEKUME & ORS (2014) LPELR-24478(CA);
PDP V. SAROR & ORS (2012) LPELR-14287(CA).
Section 95 of the Sheriffs and Civil Process Act, Cap S6 of the Laws of the Federation 2004 Vol. 14 defined judgment as “including any judgment, decree or order given or made by a court in a suit whereby any sum of money is made payable or any person is required to do or not to do any act or thing other than payment of money”.
1.1. Order Distinguished From Judgment
An Order is a written direction or command delivered by a Court or Judge. It is also the mandate or determination of the court upon some subsidiary or collateral matter arising in an action, not disposing on the merits, but adjudicating a preliminary point or directing some steps in the proceedings. While an order may under some circumstances amount to a judgment, they must be distinguished, owing to the different consequences flowing from
them, not only in the matter of enforcement and appeal but in other respects as, for instance, the time within which proceedings to annul them must be taken. Rulings on motions are ordinarily Orders rather than judgments.
It is trite that a party against whom a judgment or order of a Court of competent jurisdiction exists, whether null or valid, regular or irregular, is bound to obey any such judgment or order until or unless same is discharged or set aside. In S.P.D.C. NIG. LTD & ANOR V. X.M. FED. LTD & ANOR (2006) LPELR-3047(SC), the Supreme Court held as follows:
“It is elementary law that parties are bound by decision of a court of law unless an appeal is filed and subsequently decided otherwise. This is based on the principle of law that parties who submit themselves to the jurisdiction of the court must accept the decision of the court. Where a party reneges or tries to pull out from the result of the litigation by way of judgment, the winning party can initiate enforcement procedure to obtain the real fruits of the judgment”.
The overriding function of the judicial process of enforcement is to enable the judgment creditor reap the fruits of his judgment with a view to obtaining for him due satisfaction, compensation, restitution, performance or compliance with what the court has granted by way of remedy or relief. The process of enforcement is broadly referred to as execution.
Execution simply put therefore, is the process for enforcing or giving effect to the judgment of the court. At all times however, the process of enforcement is at the initiative of the successful party.
2.0. RELEVANT/REGULATORY STATUTES.
In Nigeria, the power of a Court to enforce and ensure compliance with its judgment or order is derived from Section 6(6)(a) of the 1999 Constitution (as amended). Outside of our constitution, other laws that regulate enforcements of judgments in Nigeria are the Sheriffs and Civil Process Act, the Sheriffs and Civil Process Laws of the States and the Judgments (Enforcement) Rules made there under. It must be emphasized that the
Judgments (Enforcement) Rules do not apply to proceedings in customary courts because the Sheriffs and Civil Process Act under which the Rules were made defines “court” as including only the High Court and Magistrates’ Court. The said Act also defines a judgment as including an order and as a consequence, references to judgments in this discourse
include the orders of courts. It should be noted that these laws name the Sheriff, the Deputy Sheriffs and the Bailiffs as the officers critical to the entire process of execution of the judgments of courts.
Other statutes include the Reciprocal Enforcement of Judgments Ordinance Cap 175 of the Laws of the Federation of Nigeria and Lagos, 1958; the Foreign Judgment (Reciprocal Enforcement) Act Cap F35 of the Laws of the Federation of Nigeria, 2004.
3.0. PARTIES TO THE EXECUTION
There are basically two parties to enforcement of judgment, namely the successful party known as the Judgment Creditor and the unsuccessful party known as the Judgment Debtor. These terms are used for every type of judgment. It does not in any way imply that the judgment must involve payment of money. Any person for the time being entitled to
enforce a judgment is a judgment creditor while the one liable to a judgment is a judgment debtor. See ABC Merchant Bank (Nig.) Ltd. vs. Panalpina World Transport (Nig.) Ltd. (2005) 4 NWLR Part 915 page 374, per Aderemi J.C.A; (as he then was).
Sections 3, 4 and 5 of the SCPA provide for the appointment of Sheriffs, Deputy Sheriffs and Bailiffs for each state of the Federation and the Federal Capital Territory. Conventionally, the office and functions of the sheriff are carried out by the Chief Registrar of each State High Court while a Deputy Chief Registrar or Chief Magistrate is appointed to carry out the
functions of a Deputy Sheriff. A Bailiff is usually appointed by the Sheriff to aid in the execution of judgments and orders. The functions of these officers are spelt out in sections 7-13 of the SCPA. Section 15 of the SCPA provides that it shall be the duty of the Police to assist in the execution of the process of the court.
3.1. PERIOD OF EXECUTION
Order II Rule 4 of the Rules provides that execution shall not be effected on a Sunday or public holiday, nor before 6am nor after 6pm, unless the Judge or Magistrate directs otherwise by order endorsed on the process to be executed. A judgment debtor is expected to comply with a judgment of a court of competent jurisdiction without prompting, as the judgment becomes operative the moment it is delivered, except the court directs otherwise. Where however there is no immediate compliance, execution can only commence at the expiration of a stipulated period from the date of judgment.
By Order IV Rule 1(1) of the Rules, the writ shall not be issued “until after the expiration of the day on which the defendant is ordered to give possession of the land, or, if no day has been fixed by the court for giving possession, until after the expiration of fourteen days from the day on which judgment is given”.
For all other processes, Order IV Rule 1(2) of the Rules provides that it shall not be issued until after the expiration of three days from the day on which judgment is given, except by express leave of the court.
Time begins to run from the date the judgment is given. However, there is a distinction between process against the person of the judgment debtor such as where his committal to prison is sought and process otherwise than against the person. Both cases are governed by Order IV Rule 8(1) of the Rules. In the latter, process may issue at any time within six years,
and in the former, at any time within two years, from the date of the judgment which is immediately sought to be enforced. After such periods respectively process shall not issue without leave of the court, but no notice to the judgment debtor before applying for such leave shall be necessary.
Any process, if unexecuted, shall remain in force for one year only from its issue. See Order IV Rule 10 of the Rules. Such an expired process can only be renewed by leave of Court upon the application by a judgment creditor. A new writ may also be issued in the alternative.
3.2. COURT FROM WHICH PROCESS CAN ISSUE
By the provisions of Order II Rule 24 of the Rules, save in exceptional cases, process other than a warrant issued from the High Court to arrest an absconding Defendant, and a writ of interim attachment, shall be issued from the court before which the proceeding is pending or which gave the judgment sought to be enforced, as the case may be, and from no other
court. The exceptions envisaged under the said order include:
i. Where a judgment has been obtained in a Magistrates’ Court, execution against the immovable property of the Judgment Debtor issues only from the High Court and not the Magistrates’ Court.
ii. In case of judgment summons against a judgment debtor which is issued by the court in the district or division in which the judgment debtor resides or carries on business.
iii. A writ of sequestration and a writ of interim attachment directed against any immovable property of a defendant or judgment debtor shall not be issued out by a Magistrate’s Court, but such writs may be issued out of the High Court upon the transfer thereto of the proceedings.
The Judgment given on appeal becomes the judgment of the court from which the appeal emanated and should be enforced therein. However, Rules of the Appellate Courts empower them to or the lower court to enforce the judgments or orders of the Appellate Courts.
See OWOO & ORS V. EDET & ANOR (2013) LPELR-22042(CA). See also section 251(1)-(3) of the 1999 Constitution as amended.
3.3. EXECUTION WITH LEAVE OF COURT
The Judgment Creditor proceeds to enforce the judgment of court upon the completion of the requisite procedural formalities, without any recourse to the court. However, there are instances where a Writ of Execution will not issue without the leave of Court. These instances are spelt out in the Rules. Where leave is required before execution, any proceedings commenced in the absence of such leave is incompetent and liable to be dismissed or set aside…..Continue Reading..