The concept of enforcing a judgment” simply refers to the process of implementing or executing the judgment of a court. Generally, the provisions of Order 39 Rule 2 of the High Court of the FCT Abuja Civil Procedure Rules as well as Order 39 Rule 2 Lagos provides that a judgment shall take effect from the date it is pronounced or read, unless the court orders otherwise. This means that if a person is directed to pay an amount of money, or do any act by an order of court which was made in judgment, such person is bound to obey it without demand and if no time is expressed in the order, he is bound to do so immediately.
Enforcement of Judgment is a concept popularly used in Civil Litigation. This is because the parties involved are usually individuals or legally identified persons. In a criminal case however, there is literally nothing to enforce. Criminal cases are usually prosecuted by the state through its counsels at the Ministry of Justice, and the execution of such judgment (if the prosecution wins) is a duty of the state.
That said, the designation for parties under enforcement of judgment is Judgment Creditor (the successful party) or Judgment Debtor (the unsuccessful party).
TIME FRAME FOR LEVYING EXECUTION OF JUDGMENT Order 4 Rule 2 Judgment Enforcement Rules: It depends on the type of judgment as follows:
1. Money judgments and others cannot be commenced until after the expiration of 3 days from the day on which judgment is given except with the express leave of court
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.
LIFE SPAN OF PROCESS OF EXECUTION
The life span of a process of execution when issued shall be one year from the date of issue if unexecuted.
The process of execution may be issued within 2 years after the judgment is delivered and a party can apply to the court for writ of execution without leave. However, anfter expiration of the 2 years, the leave of court is required to issue the writ at that point.
If it is a process against corporation/institution then the process may be issued at any time within 6 years with no requirement for leave.
Read: A Breach of Promise to Marry in Nigeria
DAY AND TIME OF EXECUTION OF JUDGMENT
Another thing to note about judgment is the fact what judgment can be executed on any day except on Sunday, or Public Holiday. On the allowed days, it must also not be done before 6am and not after 6pm unless the judge or magistrate directs otherwise by order endorsed on the process executed.
Modes of Enforcing Judgment
There are several methods of enforcing different types of judgments. Method chosen will depend on the type of judgment
A. MONEY JUDGMENTS (Involving order of court to pay money)
When a judgment creditor desires to a monetary judgment against the Judgment debtor, he may adopt any of the following means:
- Writ of sequestration
- Writ of fifa (fieri facias)
- Garnishee proceedings
- Judgment summons
1. Writ of fi.fa (writ of attachment and sale)
The writ of fifa is the most common writ of execution, which normally commands the Sheriff to seize and sell moveable properties belonging to the judgment debtor. Writ of fieri facias (fi.fa) otherwise called writ of attachment is for recovering of money judgments. It is a writ of attachment and sale.
Procedure (Moveable Property)
For execution against movable property, the judgment creditor shall file an application for a writ of execution in FORM 3, 1st Schedule SCPA with the Registrar of Court-0.4 R. 2 Judgment Enforcement Rules. A writ of fifa is executed by seizing any goods or chattels of the judgment debtor worth N10.00 and above except his wearing apparels, beddings and tools and implements of his trade: Section 25 (a) Sheriffs and Civil Processes Act
If sufficient movable property of the judgment debtor can be found within the jurisdiction and costs of execution, the immovable properties cannot be attached.
Where the moveable properties were not enough or cannot be found, the Judgment Creditor will apply for Writ of Execution. This is applied for by the judgment creditor when the movable property seized were not enough to satisfy the judgment debt-Section 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 Application shall be by motion on notice supported by Affidavit and Written Address. All these is done by filing F0RM 38
TIME FOR SALE OF DEBTOR’S GOODS
Movable Property
The goods or chattels when attached are sold 5 days after they are seized unless the judgment debtor consents to an earlier sale or the goods are of a perishable nature; Section 29 SCPA
Immovable Property
If the property is immovable, the sale has to be done at least 15 days after court order attaching same. Except with Consent of the judgment debtor: O. 7 R. 6(1) JER
APPLICATION OF PROCEEDS OF SALE
The money realised from the sale of the goods or immovable property should be applied in the following manner.
i. First pay cost of execution e.g. auctioneer’s fees
ii. Pay the judgment debt
iii. Whatever is left goes back to the judgment debtor
Garnishee Proceedings
According to the provisions of Section 83 Sheriffs and Civil Process Act; Order 46 Abuja Rules 2018, The garnishee proceedings is a mode of judgment enforcement used by a judgment creditor to attach to debts owed a judgment debtor by a third party. It usually involves Banks. Here, the court orders a third party called the Garnishee, to pay to the court, a debt due by him to the judgment debtor; be used to pay the judgment creditor.
Parties to Garnishee Proceedings
In garnishee proceedings, there are usually 3 parties namely;
- The judgment creditor known as GARNISHOR
- The judgment Debtor
- The third party owing the debt to judgment debtor => GARNISHEE
The Conditions for Attaching Debt for Garnishee Proceedings:
a. The debt to be attachable must be due and payable to judgment debtor;
b. It must be a present debt and not a future debt. Salaries and rents are attachable provided they are due.
c. The garnishee proceedings can only be commenced if the garnishee is indebted to the judgment debtor in the state in which the proceedings are brought. If the garnishee is outside the state, garnishee proceedings cannot be brought
PLEASE NOTE-
An Application for garnishee proceedings can be made even if there is a stay of execution of judgment; see Purification Technique, v. A.G Lagos State; NITEL v. ICC
The Procedure Garnishee Proceedings:
1. The Garnishor (the judgment creditor) will file a Motion EX PARTE
supported by an Affidavit and a Written Address praying the court for an order NISI.
2. After hearing the Motion, the court will make the order Nisi and it is served on the Garnishee and Judgment Debtor.
3. If garnishee pays within 8 days of the order, the matter is terminated otherwise; the Registrar will fix a date for hearing not less than 14 days after service of the order Nisi.
4. The garnishee is to come to Court to refute or to show cause why the order Nisi should not be made absolute within 8 days by filing an Affidavit to Show Cause.
5. The Garnishee may file a counter affidavit showing reasons why the money should not be used to satisfy the judgment debt.
6. After hearing the proceedings the court may cancel the order nisi or may make the garnishee order absolute.
Effect of a Garnishee Order Nisi
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; O.8 JER.
Effect of Failure to Serve Garnishee Order Nisi
Failure to serve the order Nisi on the Garnishee and judgment Debtor would nullify the Proceedings; Wema Bank v. Brasternstein; Odey v NIMASA
Note that where the Garnishee fails to pay upon an order absolute, judgment would be executed upon him by writ of fifa.
Also, if the account to be attached belongs to the Government, the consent of the Attorney General must be obtained before bringing the garnishee application.
2. Enforcement of Land Judgment
A judgment or order for the recovery of land or for the delivery of possession of land shall be enforced by a WRIT OF POSSESSION. However, if it is a case for the recovery of premises, it will be enforced by applying for Warrant of Possession. It is important to note that Land judgments cannot be enforced until after the expiration of 14 days from the day the judgment was given.
Enforcement of Judgments Inter-State
By S.287(1)-(3) CFRN 1999, the decision of the Supreme Court, Court of Appeal, Federal High Court, National Industrial Court, State High Court and other Courts established by the Constitution shall be enforceable in any part of the Federation by all authorities and persons and by all courts.
This is a Federal matter and is guided by the Sheriffs and Civil Process Act.
The Procedure is as follows:
Obtain a certificate of judgment from the Court that gave the Judgment with a court of similar jurisdiction.
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 – S.105 SCPA
Support the application with an affidavit stating;
(i) That the amount for which process is proposed to be issued is actually due and unpaid; or
(ii)That an act ordered to be done remains undone; or disobeyed the order: Section 107 Sheriff and Civil Process Act.
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 fifa (against the movable property) then by writ of execution. S.100-104 of the SCPA
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