Upon judgment, a affair may abode adjoin the acumen or interlocutory order. It becomes all-important to bottle the res ante awaiting the assurance of the appeal. There are three types of applications that can be fabricated for aliment of the cachet quo awaiting appeal. They are:
1. Break of beheading of judgment
2. Break of proceedings
3. Injunction awaiting appeal
They will be advised below:
(A) STAY OF PROCEEDINGS
An adjustment of break of proceeding is fabricated to append added affairs in the clothing awaiting the assurance of the abode adjoin an interlocutory ruling. Break of proceeding may be accepted area a cloister states a case to a college cloister for its opinion, area a affair is in antipathy of court, his affairs may be backward until he is purged of his contempt, area parties accede to yield a bulk to adjudication but one affair gain to cloister afterwards aboriginal appointment to arbitration
1. activated for by a Motion on Apprehension accurate with an affirmation ambience alternating the area aloft which the appliance is based and a accounting abode to be filed at the balloon Cloister Anthology or Cloister of Abode but accept to be to the High cloister unless there are adapted affairs authoritative it impossible. Or. 7 r. 4, Cloister of Abode Rules 2011. But if the cloister of Abode has become bedeviled of the bulk as, if the abode has been entered, the appliance can alone be fabricated to the Cloister of Appeal. If the balloon or High Cloister refuses the application, the appellant may book a agnate appliance to the Cloister of Abode aural 15 canicule of such refusal, annexed thereto certified accurate copies of the apprehension of abode adjoin the ruling, the cardinal adjoin which an abode has been lodged and the cardinal abnegation the application. OR. 7r. 3 CA Rules
2. To argue the Motion, the acknowledging is to book a adverse affirmation and a accounting abode aural 7 canicule of the cancellation of the Motion.
See O. 54 r. 1 of the High Cloister of Lagos Accompaniment (Civil Procedure) Rules 2004 and O. 45 r. 1 of the High Cloister of the FCT Abuja (Civil Procedure) Rules 2004.
The altitude for the admission of an appliance for break of affairs are:
1. there accept to be a accurate appeal
2. that the area of abode are acceptable to succeed
3. that the antithesis of accessibility is in the applicant’s favour
4. it is to bottle the attributes of the accountable matter
5. that aegis or undertaken for its admission has been accustomed or paid into the Court
(B) METHODS FOR ENFORCEMENT AND EXECUTION OF JUDGMENT
There are several agency of administration altered types of judgments like money judgments, acreage judgments, and added judgments. Thus -
1. A acumen for transaction of money may be activated by command offiery facias, garnishee proceedings, a charging order, a command of aloofness or an adjustment of bondage on a acumen debtor summons.
2. A acumen for control of acreage may be activated by a command of possession, a command of aloofness or a bondage order.
3. A acumen for supply of appurtenances may be activated by a command of specific supply or amends of the appurtenances or their value, a command of sequestration, or an adjustment of committal.
4. A acumen acclimation or abstinent the accomplishing of an act may be activated by an adjustment of bondage or a command of aloofness adjoin the acreage of the adverse getting – Tukur v. Government of Gongola Accompaniment (supra).
After the acumen or adjustment has been made, the acumen creditor will administer to the Agent of the Cloister which fabricated the acumen or adjustment for an adapted activity of beheading to be issued. Area the law and/or rules beheading cannot be issued afterwards leave, again the acumen creditor will aboriginal access leave afore applying for the adapted activity of beheading to be issued.
After the application, the Agent shall affair the adapted command which directs the Sheriff or Bailiff of cloister to enforce. Afterwards execution, the Sheriff or Bailiff makes his allotment to the Registrar.
Kinds or modes of administration judgments
There are two kinds of judgments which are -
1. Monetary judgments; and
2. Non-monetary judgments.
Means of administration money judgments are as follows:
1. Command of sequestration
2. Command of fi. fa( fierrifacies)
3. Command of execution
4. Garnishee proceedings
5. Command of delivery/ possession
Designation for Parties beneath Administration of Judgment
The appellation for parties beneath administration of acumen is Acumen Creditor (the acknowledged party) or Acumen Debtor (the bootless party).
Time for levying beheading of judgment
It depends on the blazon of acumen as follows:
1. Money judgments and others can be commenced 3 canicule afterwards the supply of the judgment
2. Acumen of control can be commenced 14 canicule afterwards supply of the judgment
3. In any added case not defined by Law, with the leave of Court.
The assorted agency of administration acumen will be advised below:
(C) WRIT OF FI. FA
This is activated for to attach and auction adaptable properties, appurtenances and accouterments of the acumen debtor except the beddings, cutting apparels and alive accoutrement to the bulk of #10 that cannot be attached. See S. 25 of the Sherriff and Civilian Activity Act (SCPA) The items and acreage of the acumen debtor accept to be bedeviled and taken to Cloister aboriginal and they can be awash 5 canicule afterwards the seizure. See S. 29(1) of the SCPA.
The execution, though, directed adjoin appurtenances and chattels, can be directed to adamant backdrop area such appurtenances and accouterments are not acceptable for the transaction of the debt – area 44 of the Sheriffs and Civilian Activity Act.
The appliance for the command of fifa is by way of motion on apprehension to the High Cloister and shall be accurate by affirmation bold -
a) What steps, if any, accept already been taken to accomplish the judgment, and with what aftereffect – Bayero v. FMBN Plc (1998) 2 NWLR (Pt. 538) 509 at 527;
b) What sum charcoal due beneath the judgment;
c) That no adaptable acreage of the acumen debtor, or none acceptable to amuse the acumen debt, can with reasonable activity be begin – Adjustment IV Rule 16(2) of the Acumen (Enforcement) Rules; and
An affirmation of the acumen creditor bold the buying of the acreage approved to be attached. Area 5 of the Sheriff and Civilian Activity Act states that the acumen debtor’s acreage and accouterments are awash and the gain of the auction utilised in the transaction of the costs of the beheading and any sum of money payable to the acumen creditor beneath the judgment.
The money accomplished from the gain of auction is again disposed as follows -
a) Transaction to the Sheriff for any bulk due and contributed for Sheriffs, Bailiffs, and appraisers’ fees and expenses;
b) Transaction to the auctioneer, if any, of the assigned fees and costs of sale.
c) Transaction to the acumen creditor of the bulk to be levied calm with costs paid by him consecutive to the affair of writ, if any; and
d) Transaction to the acumen debtor.
Note: A Magistrate can accomplish its acumen by arising a Command of fi. fa but he cannot affair a Command of beheading (This is activated for if the adaptable acreage bedeviled were not abundant to amuse the acumen debt. See S. 44 of the SCPA. The purpose is to attach the adamant acreage i. e. land, machines etc to amuse the debt which will be awash afterwards 15 canicule of the attachment).
The acumen Creditor in such a case accept to administer to the High Cloister for the admission of Command of execution. See S. 44 of the SCPA.
(D) GARNISHEE PROCEEDINGS
It involves the adapter of debt due from a third affair to the acumen debtor and the use of the bulk of that debt in liquidating the acumen debt. Thus, the debt owed by the third affair to the acumen debtor, on getting attached, is ultimately paid by the third affair to the acumen creditor – area 83 of the Sheriffs and Civilian Activity Act.
As beforehand said, the afterward should be acclaimed beneath garnishee affairs -
i. The acumen creditor is alleged the garnishor;
ii. The third affair is alleged the garnishee; and
iii. The acumen debtor is alleged the acumen debtor
See S. 85 of the SCPA and UNION BANK PLC V. EKANEM.
1. The appliance is fabricated by a Motion Ex Parte accurate with an affirmation and a accounting address.
2. Afterwards audition the motion, the Cloister may affair an Adjustment nisi which is to be served on the Garnishee and the Acumen debtor aural 14 days
3. The garnishee is to appear to Cloister to abnegate or appearance could cause why the adjustment nisi should not be fabricated complete aural 8 canicule by filing an Affirmation to Appearance Cause. The aftereffect of an Adjustment nisi is that the garnishee cannot pay the money in his control to the acumen debtor until the Adjustment is fabricated complete or assuredly decided. See S. O. 8 Acumen Administration Rules.
Under the Acumen (Enforcement) Rules, garnishee affairs are commenced by the acumen creditor filing in the cloister anthology -
1. An affirmation which shall accompaniment the names, addresses and occupations of the acumen creditor, acumen debtor, and the garnishee;
2. The date the acumen was recovered in suit;
3. That the acumen is still wholly aghast or still unsatisfied;
4. That the garnishee is accountable to the acumen debtor and the bulk so indebted;
5. The facts that gives the cloister administration adjoin the garnishee bold that the cloister would accept administration as amid the acumen debtor and the garnishee – Anatomy 25.
If the garnishee affairs are taken in a cloister added than the cloister in which the acumen was accustomed or made, a certified accurate archetype of the acumen accept to aswell be filed – Adjustment VIII Rule 3(6) of the Judgments (Enforcement) Rules. The affirmation accept to accompaniment -
i. That acumen has been recovered;
ii. That it is still aghast and to what amount; and
iii. That any getting is accountable to the acumen debtor and is aural the state.
(E) Command of possession
It is activated for to access acreage accustomed in judgment.
1. By bushing and filing a praecipe form, Anatomy 3
2. The Cloister will again affair a Command of execution.
The command of control shall not be issued until the cessation of time defined by the acumen for the acumen debtor to accord up possession. If the acumen did not specify any date, it shall alone be issued afterwards the cessation of 14 days. O. IV r. 1
The after-effects of the abortion of a acumen debtor to accede with a judgment.
Any of the afterward may be done:
1. Acumen summons: It is to accompany the acumen debtor to Cloister to appraise his agency or adeptness to pay the acumen debt. If it is begin that he is able to pay but he has refused, the afterward Orders of civilian antipathy or aloofness can be made. See S. 55 of the SCPA.
2. Adjustment of bondage to bastille for antipathy of Court. See Anatomy 48 and 49 of SCPA
Delivery of goods
A acumen for the supply of appurtenances shall be activated by command of supply in Anatomy 67. The acumen creditor may by the aforementioned command or by a abstracted command of fifa burden beheading adjoin the acumen debtor’s acreage for any sum of money aswell awarded in the acumen – Adjustment XI Rule 4 of the Acumen (Enforcement) Rules.
Order for beheading of accomplishments and negotiable instruments
Where a acumen directs any accomplishment to be accomplished or any negotiable instruments to be endorsed, and the acumen debtor neglects or refuses to comply, the acumen creditor may adapt or endorse the accomplishment or apparatus in accordance with the acumen with the adapted backyard if appropriate by law. The agent of the cloister shall thereafter assassinate the accomplishment or apparatus as if aforementioned had been accomplished or accustomed by the acumen debtor – Adjustment XI Rule 11 of the Acumen (Enforcement) Rules.
Enforcement of acumen inter-State.
obtain a affirmation of acumen from the Cloister that accord Judgment, address an appliance to the Agent of the Cloister in the added Accompaniment area it is to be accomplished to annals it in its Annals of Nigerian Acumen abutment the appliance with an affirmation the acumen if registered is advised as the acumen of the Cloister of the added Accompaniment the Cloister will burden beheading aboriginal by command of fi. fa (against the adaptable property) again by command of execution. See S. 100-104 of the SCPA and ELECTRICAL MECHANICAL CONSTRUCTION LTD V. TOTAL NIG. & ANOR
Enforcement of adopted acumen in Nigeria
The Cloister that has administration to absorb this is the High Courts and it is alone the judgments of above Courts that can be enforced.
There are two procedures to be followed:
(A) Activity at accepted Law
1. Institute an activity in Court
2. Appear by way of Summary Acumen / undefended account announcement the judgment
3. If the activity is successful, the acumen becomes the acumen of the Nigerian Court.
For the administration activity to be successful, the adopted acumen accept to amuse the afterward requirements -
1. The acumen accept to be final and conclusive;
2. The acumen accept to accept been delivered by a cloister of competent jurisdiction;
3. The acumen accept to be for a audible sum of money, provided that it is not money recoverable as tax, accomplished or penalty; and
4. If the acumen is for a res added than money, the res accept to accept been bury at the administration of the adopted cloister that gave the judgment, as at the time of supply – Peenok Ltd. V. Hotel Presidential Ltd. (1982) 12 SC 1.
(B) By allotment based on the Adopted Acumen Reciprocal Act. This is to be done aural 6 years of the supply of the adopted judgment.
The acumen debtor may administer to set abreast the allotment of a adopted acumen beneath any of the afterward -
1. That the acumen is not one to which Part I of the Act applies or that the Act has not been complied with;
2. That the Cloister of Origin had no administration to accord the acumen – Peenok Ltd. v. Hotel Presidential Ltd (supra).
3. That the acumen was acquired by fraud;
4. That the administration of the acumen would be adverse to accessible action in Nigeria;
5. That the appellant is not the getting vested with the rights beneath the judgment; and
6. That the acumen was in account of a bulk which was res judicataas at the date it was delivered in the adopted country – area 6(2) and (3) of the Act.