Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.
The enforcement of judgments, particularly in Nigeria is an important step in any matter brought before a Court for resolution. Where a party has judgment delivered in his favor by the Court, if not enforced, the judgment will be useless to the said party. This article sets out the procedure for enforcement of judgment in Nigeria.
The Supreme Court, in the case of Saraki & Anr. v. Kotoye, defined the word 'judgment' as:
“A binding, authentic, official judicial determination of the Court in respect of the claims and in an action before it.”
In other words, it is the pronouncement of the court on the action before it; a final settlement of the matter at the court's level of the judiciary.
Judgment must be found in favor of one party, whether the Claimant (the party who has instituted the action) or the Defendant, therefore, it leaves a judgment creditor; the party in favor of whom judgment is found, and a judgment debtor; the party against whom judgment is given.
Trending
The Interplay of Intellectual Property Rights and Sports: A Conduit of Commercial Opportunities For the Nigerian Sports Industry
Generally, there are 2 types of judgments:
While a declaratory judgment merely proclaims or declares the existence of a legal relationship and does not contain any order which may be enforced against the judgment debtor, an executory judgment declares the respective rights of the parties and then proceeds to order the judgment debtor to act in a particular way, hence, it is enforceable.
Further to this, declaratory judgments may end up being the ground or basis of subsequent proceedings in which the rights, having been violated, receive enforcement.
In David Ogunlade v. Ezekiel Adeleye, the Court held that:
“.whilst an executory judgment is capable of immediate execution, a declaratory judgment gives no such right. It merely declares the rights of the parties. The rights which it confers on the plaintiff can only become enforceable if another and subsequent judgment, albeit relying on the rights it declared, so decrees. Such a subsequent judgment conferring the power of execution is executory.“
In such an instance, the date of enforceability will be the date of the subsequent (executory) judgment and not the earlier judgment, which is merely declaratory.
In the words of D.I. Efevwerhan¸ 'Every successful litigant desires to enjoy the fruit of his success, which is judgment.' Execution includes the process of carrying into effect the directions in a decree or judgment.
This begs the question 'How does one enforce a judgment against an unwilling judgment debtor?'
Here, the judgment debtor is required to pay the judgment creditor a sum of money; this could be damages awarded or a debt owed which constituted the subject matter of the suit.
This is used to levy execution against the property of the judgment debtor; whether movable or immovable, as long as they lie within the jurisdiction of the court. On the authority of Order IV Rule 1(2) of the Judgment Enforcement Rules, it can only be issued upon the expiration of 3 days from the date of delivery of judgment.
The first call is on the movable property of judgment debtor and Section 25 of the Sheriffs and Civil Processes Act limits the property that may be seized and exempts wearing apparel, bedding and tools and implements of the judgment debtor's trade to the value of N10, which is unarguably inconsequential because of the devaluation of the naira.
It is important to note that seized property cannot be sold until the expiration of 5 clear days from the date of seizure, unless the goods are of a perishable nature or the judgment debtor requests that they be sold in writing. Where the execution of the judgment on the movable property of the judgment debtor does not settle the debt, then his immovable property may be attached but, this cannot be done without the leave of the High Court first being obtained.
Before the judgment creditor can obtain the leave to attach the debtor's immovable property, he must first show that the funds generated by the movable property did not settle the debt and that the property he is seeking to attach actually belongs to the judgment debtor. Only after these facts have been reasonably established will leave be granted.
After the attachment, sale is only to occur upon the expiration of 15 days from date of attachment, unless the judgment debtor requests otherwise in writing.
An application for a writ of fi fa is brought in the form of a motion on notice.
This is provided for in Sections 83 – 92 of the SCPA. Where the judgment debtor has money due to him from a third party, the court may call that third party; now the garnishee, upon the application of the judgment creditor (the garnishor) to pay the money due to the judgment debtor to the court, said money to eventually be paid to the judgment creditor in settlement of the judgment debt.
The judgment creditor applies, by a motion ex parte, for an order nisi, which is a conditional order, to compel the garnishee to appear before the court and show reasonable cause why he should not be made to pay the debt to the creditor. Where the garnishee fails to show reasonable cause or honor the invitation of the court, the order nisi may be made absolute and the money judgment will be enforceable against him, as if he were the judgment debtor and the appropriate writ of execution may be issued against him.
This is provided for in Section 55 of the SCPA. The judgment creditor applies to the court for the issue of a judgment debtor summons, to invite the debtor to court to answer, on oath, questions as to his means.
The likely outcomes of this invitation to court, according to Section 63 of the SCPA, are:
The governing law for this is Section 82 of the SCPA.
An application for sequestration may only be made to the High Court. It is similar to a writ of Fi Fa but, in this case, the intent is not to sell the property or transfer title but to appoint “commissioners” to enter the judgment debtor's immovable property for the purpose of collecting and keeping the rent or profits accruing on the property, or to seize the property and detain until the judgment debtor clears himself of contempt or until the court makes a contrary order, which could be that the debt be settled out of the funds obtained. This is on the authority of Order 11 Rule 9 of the Judgment Enforcement Rules.
This is where the judgment creditor has obtained judgment for the possession of the property which was in dispute.
This applies to cases of recovery of premises other than between landlords and tenants. It cannot be issued until the expiration of the day on which the judgment debtor is ordered to give possession of the land or, where no such day was given, until the expiration of 14 days from the day judgment was given, according to Order IV Rule 1(1) of the JER.
This applies to recovery of premises between landlords and tenants.
On the authority of Section 72 of the SCPA, the judgment debtor may be committed to prison until he obeys the judgment and delivers possession of the property.
This is for cases where the judgment was for the delivery of goods from the judgment creditor to the judgment debtor.
Based on the principle of specific performance, an order of specific delivery may be issued by the court.
Generally, the judgment of any superior court of record is enforceable in any part of the Federation as this is guaranteed by the Constitution in Section 287.
By virtue of Section 107 of theSCPA however, before the judgment can be enforced on registration, the judgment creditor must depose to an affidavit stating either of the following:
a) That the amount in the process has become due but unpaid; or
b) That an act ordered to be done remains undone; or
c) That the person ordered to forebear from doing an act has disobeyed the order.
After execution, the Registrar of the enforcing court shall file a report, under the seal of the court, of the outcome of the execution notifying the registrar of the court where the judgment was given, that the judgment has been satisfied either wholly or in part, as the case may be.
The enforcement of a judgment is just as important as obtaining the judgment itself ad it would just be a waste of time to go to Court, get a judgment and be unable to reap the benefits of the judgment. This is the importance of the mechanisms of enforcement explained above.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
© Mondaq® Ltd 1994 – 2021. All Rights Reserved.
Forgot your password?
Free, unlimited access to more than half a million articles (one-article limit removed) from the diverse perspectives of 5,000 leading law, accountancy and advisory firms
Articles tailored to your interests and optional alerts about important changes
Receive priority invitations to relevant webinars and events
You’ll only need to do it once, and readership information is just for authors and is never sold to third parties.
We need this to enable us to match you with other users from the same organisation. It is also part of the information that we share to our content providers (“Contributors”) who contribute Content for free for your use.