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Applications Pending Appeal and Enforcement of

Judgment
Upon judgment, a party may appeal against the judgment or interlocutory order. It becomes
necessary to preserve the res ante pending the determination of the appeal. There are three types
of applications that can be made for maintenance of the status quo pending appeal. They are:
1. Stay of execution of judgment
2. Stay of proceedings
3. Injunction pending appeal

They will be treated below:

(A) STAY OF PROCEEDINGS


An order of stay of proceeding is made to suspend further proceedings in the suit pending the
determination of the appeal against an interlocutory ruling. Stay of proceeding may be granted
where a court states a case to a higher court for its opinion, where a party is in contempt of court,
his proceedings may be stayed until he is purged of his contempt, where parties agree to take a
matter to arbitration but one party proceeds to court without first submitting to arbitration
Procedure:
1. applied for by a Motion on Notice supported with an affidavit setting forth the grounds
upon which the application is based and a written address to be filed at the trial Court
Registry or Court of Appeal but must be to the High court unless there are special
circumstances making it impossible. Or.7 r.4, Court of Appeal Rules 2011. But when the
court of Appeal has become seized of the matter as, when the appeal has been entered, the
application can only be made to the Court of Appeal. If the trial or High Court refuses the
application, the applicant may file a similar application to the Court of Appeal within 15 days
of such refusal, annexed thereto certified true copies of the notice of appeal against the
ruling, the ruling against which an appeal has been lodged and the ruling refusing the
application.OR.7r.3 CA Rules
2. To oppose the Motion, the respondent is to file a counter affidavit and a written address
within 7 days of the receipt of the Motion.
See O. 54 r. 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 and O. 45 r. 1 of the High
Court of the FCT Abuja (Civil Procedure) Rules 2004.

The conditions for the grant of an application for stay of proceedings are:
1. there must be a valid appeal
2. that the grounds of appeal are likely to succeed
3. that the balance of convenience is in the applicants favour
4. it is to preserve the nature of the subject matter
5. that security or undertaken for its grant has been given or paid into the Court

METHODS FOR ENFORCEMENT AND EXECUTION OF JUDGMENT

There are several ways of enforcing different types of judgments like money judgments, land
judgments, and other judgments. Thus
1. A judgment for payment of money may 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 may be enforced by a writ of possession, a writ of
sequestration or a committal order.
3. A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution
of the goods or their value, a writ of sequestration, or an order of committal.
4. A judgment ordering or restraining the doing of an act may be enforced by an order of
committal or a writ of sequestration against the property of the disobedient person - Tukur
v. Government of Gongola State (supra).

After the judgment or order has been made, the judgment creditor will apply to the Registrar of the
Court which made the judgment or order for an appropriate process of execution to be
issued.Where the law and/or rules execution cannot be issued without leave, then the judgment
creditor will first obtain leave before applying for the appropriate process of execution to be issued.

After the application, the Registrar shall issue the appropriate writ which directs the Sheriff or Bailiff
of court to enforce.After execution, the Sheriff or Bailiff makes his returns to the Registrar.

Kinds or modes of enforcing judgments

There are two kinds of judgments which are

1. Monetary judgments; and


2. Non-monetary judgments.

Means of enforcing money judgments are as follows:


1. Writ of sequestration
2. Writ of fi.fa( fierrifacies)
3. Writ of execution
4. Garnishee proceedings
5. Writ of delivery/ possession

Designation for Parties under Enforcement of Judgment


The designation for parties under enforcement of judgment is Judgment Creditor (the successful
party) or Judgment Debtor (the unsuccessful party).

Time for levying execution of judgment


It depends on the type of judgment as follows:
1. Money judgments and others can be commenced 3 days after the delivery of the
judgment
2. Judgment of possession can be commenced 14 days after delivery of the judgment
3. In any other case not specified by Law, with the leave of Court.
The various means of enforcing judgment will be treated below:

(A.) WRIT OF FI.FA


This is applied for to attach and sale movable properties, goods and chattels of the judgment debtor
except the beddings, wearing apparels and working tools to the value of #10 that cannot be
attached. See S. 25 of the Sherriff and Civil Process Act (SCPA) The items and property of the
judgment debtor must be seized and taken to Court first and they can be sold 5 days after the
seizure. See S. 29(1) of the SCPA.
The execution, though, directed against goods and chattels, can be directed to immovable
properties where such goods and chattels are not sufficient for the payment of the debt section
44 of the Sheriffs and Civil Process Act.

The application for the writ of fifa is by way of motion on notice to the High Court and shall be
supported by evidence showing

a) What steps, if any, have already been taken to enforce the judgment, and with what effect
Bayero v. FMBN Plc (1998) 2 NWLR (Pt. 538) 509 at 527;
b) What sum remains due under the judgment;
c) That no movable property of the judgment debtor, or none sufficient to satisfy the
judgment debt, can with reasonable diligence be found Order IV Rule 16(2) of the
Judgment (Enforcement) Rules; and

An affidavit of the judgment creditor showing the ownership of the property sought to be attached.
Section 5 of the Sheriff and Civil Process Act states that the judgment debtors property and
chattels are sold and the proceeds of the sale utilised in the payment of the costs of the execution
and any sum of money payable to the judgment creditor under the judgment.

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

a) Payment to the Sheriff for any amount due and unpaid for Sheriffs, Bailiffs, and appraisers
fees and expenses;
b) Payment to the auctioneer, if any, of the prescribed fees and expenses of sale.
c) Payment to the judgment creditor of the amount to be levied together with costs paid by
him subsequent to the issue of writ, if any; and
d) Payment to the judgment debtor.

Note: A Magistrate can enforce its judgment by issuing a Writ of fi.fa but he cannot issue a Writ of
execution (This is applied for when the movable property seized were not enough to satisfy the
judgment debt. See S. 44 of the SCPA. The purpose is to attach the immovable property i.e. land,
machines etc to satisfy the debt which will be sold after 15 days of the attachment).
The judgment Creditor in such a case must apply to the High Court for the grant of Writ of
execution. See S. 44 of the SCPA.

(C.)GARNISHEE PROCEEDINGS
It involves the attachment of debt due from a third party to the judgment debtor and the use of the
amount of that debt in liquidating the judgment debt. Thus, the debt owed by the third party to the
judgment debtor, on being attached, is ultimately paid by the third party to the judgment creditor
section 83 of the Sheriffs and Civil Process Act.

As earlier said, the following should be noted under garnishee proceedings

i. The judgment creditor is called the garnishor;


ii. The third party is called the garnishee; and
iii. The judgment debtor is called the judgment debtor

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


Procedure:
1. The application is made by a Motion Ex Parte supported with an affidavit and a written
address.
2. After hearing the motion, the Court may issue an Order nisi which is to be served on the
Garnishee and the Judgment debtor within 14 days
3. The garnishee is to come to Court to refute or show cause why the order nisi should not
be made absolute within 8 days by filing an Affidavit to Show Cause. The effect of an
Order nisi is that the garnishee cannot pay the money in his possession to the judgment
debtor until the Order is made absolute or finally decided. See S. O.8 Judgment
Enforcement Rules.
Under the Judgment (Enforcement) Rules, garnishee proceedings are commenced by the judgment
creditor filing in the court 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 suit;
3. That the judgment is still wholly unsatisfied or still unsatisfied;
4. That the garnishee is indebted to the judgment debtor and the amount so indebted;
5. The facts that gives the court jurisdiction against the garnishee assuming that the court would
have jurisdiction as between the judgment debtor and the garnishee Form 25.

If the garnishee proceedings are taken in a court other than the court in which the judgment was given
or made, a certified true copy of the judgment must also be filed Order VIII Rule 3(6) of the
Judgments (Enforcement) Rules. The affidavit must state

i. That judgment has been recovered;


ii. That it is still unsatisfied and to what amount; and
iii. That any person is indebted to the judgment debtor and is within the state.

Non-monetary judgments
(d.)Writ of possession
It is applied for to obtain land given in judgment.
Procedure:
1. By filling and filing a praecipe form, Form 3
2. The Court will then issue a Writ of execution.
The writ of possession shall not be issued until the expiration of time specified by the judgment for
the judgment debtor to give up possession. If the judgment did not specify any date, it shall only be
issued after the expiration of 14 days. O. IV r.1

The consequences of the failure of a judgment debtor to comply with a judgment.


Any of the following may be done:
1. Judgment summons: It is to bring the judgment debtor to Court to examine his means or
ability to pay the judgment debt. If it is found that he is able to pay but he has refused,
the following Orders of civil contempt or sequestration can be made. See S. 55 of the
SCPA.
2. Order of committal to prison for contempt of Court. See Form 48 and 49 of SCPA

Delivery of goods

A judgment for the delivery of goods shall be enforced by writ of delivery in Form 67. The judgment
creditor may by the same writ or by a separate writ of fifa levy execution against the judgment
debtors property for any sum of money also awarded in the judgment Order XI Rule 4 of the
Judgment (Enforcement) Rules.

Order for execution of deeds and negotiable instruments

Where a judgment directs any deed to be executed or any negotiable instruments to be endorsed, and
the judgment debtor neglects or refuses to comply, the judgment creditor may prepare or endorse the
deed or instrument in accordance with the judgment with the appropriate stamping if required by law.
The registrar of the court shall thereafter execute the deed or instrument as if same had been executed
or endorsed by the judgment debtor Order XI Rule 11 of the Judgment (Enforcement) Rules.

Enforcement of judgment inter-State.


Procedure:
obtain a certificate of judgment from the Court that give Judgment, write an application to the
Registrar of the Court in the other State where it is to be executed to register it in its Register of
Nigerian Judgment support the application with an affidavit the judgment when registered is
treated as the judgment of the Court of the other State the Court will levy execution first by writ of
fi.fa( against 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 foreign judgment in Nigeria


The Court that has jurisdiction to entertain this is the High Courts and it is only the judgments of
superior Courts that can be enforced.
There are two procedures to be followed:
(A) Action at common Law
1. Institute an action in Court
2. Come by way of Summary Judgment / undefended list exhibiting the judgment
3. If the action is successful, the judgment becomes the judgment of the Nigerian Court.
For the enforcement action to be successful, the foreign judgment must satisfy the following
requirements

1. The judgment must be final and conclusive;


2. The judgment must have been delivered by a court of competent jurisdiction;
3. The judgment must be for a definite sum of money, provided that it is not money recoverable as
tax, fine or penalty; and
4. If the judgment is for a res other than money, the res must have been situate at the jurisdiction
of the foreign court that gave the judgment, as at the time of delivery Peenok Ltd. V. Hotel
Presidential Ltd. (1982) 12 SC 1.
(B) By registration based on the Foreign Judgment Reciprocal Act. This is to be done within 6 years
of the delivery of the foreign judgment.
The judgment debtor may apply to set aside the registration of a foreign judgment under any of the
following
1. That the judgment is not one to which Part I of the Act applies or that the Act has not been
complied with;
2. That the Court of Origin had no jurisdiction to give the judgment Peenok Ltd. v. Hotel
Presidential Ltd (supra).
3. That the judgment was obtained by fraud;
4. That the enforcement of the judgment would be contrary to public policy in Nigeria;
5. That the applicant is not the person vested with the rights under the judgment; and
6. That the judgment was in respect of a matter which was res judicataas at the date it was
delivered in the foreign country section 6(2) and (3) of the Act.