Enforcement of judgment in Nigeria
When the judgment of a court is delivered, it becomes enforceable against a Judgment Debtor who fails to comply with the judgment for one reason or the other. In order to do this, some coercive methods may have to be employed. Self-help however, is not an option; therefore provision has been made under our laws to enable successful litigants enjoy the benefit of their hard earned judgment.
In Nigeria, most states of the federation have their own judgment enforcement rules. These rules are employed to enforce judgments of courts established by the House of Assembly of each state. They are known as The Sheriff and Civil Process Laws and Judgment Enforcement Rules. This is applicable in the Magistrate and Area Courts.
For the High Courts and other Superior Courts of Record, enforcement of judgment is governed by the Sheriff and Civil Process Act and Judgment Enforcement Rules.
(i)Enforcement of money judgment can be done in any of the following ways:
A.Writ of fierifacias
B.Garnishee proceedings
C.Payment by Instalment
A.Writ of fierifacias is otherwise known as writ of fifa and it is the most commonly used. The writ is directed to the Sheriff commanding him to seize, attach and sell the goods of the Judgment Debtor in order to realize the judgment of the court.
Procedure for carrying out a writ of fifa
The Judgment Creditor will apply for the writ of fifa by filing form 3 (praecipe form) in the Sheriff and Civil Process Act, and it will be filed with the Registrar of Court.
A writ of fifa cannot be issued until 3 days after the judgment is delivered and it is directed for the seizure and sale of the moveable properties of the Judgment Debtor except his clothing, beddings, tools and instrument of trade.
Where the moveable properties of the Judgment Debtor cannot be found within jurisdiction or is not sufficient to satisfy the judgment debt and cost, the Judgment Creditor may apply to the court for a writ of execution against the immoveable property of the Judgment Debtor if he has one.
The application to attach the immoveable property is by motion on notice supported by affidavit stating the facts.
B.Garnishee Proceedings
This procedure is employed by the Judgment Creditor to attach the debt which a third party owes the Judgment Debtor. The sum owed by the third party to the Judgment Debtor must be due to the Judgment Debtor before the garnishee proceedings can be filed in court e.g. salaries, rent and money in the bank; see Sec 85 of the Sheriff and Civil Process Act.
The Judgment Creditor is referred to as the Garnishor whilst the third party is referred to as the Garnishee.
Procedure for Garnishee Proceedings
The Judgment Creditor brings an application by motion exparte supported by affidavit stating all relevant facts. The court will consider the motion exparte and if it is satisfied that the Judgment Creditor is entitled to attach the debt it will make a garnishee order nisi in Form 26 in the Sheriffs and Civil Process Act.
The order nisi commands the garnishee to appear in court on a specified date to show cause why an order absolute to pay the Judgment Creditor the amount of debt owed should not be made against him.
Where the order nisi is served on the garnishee and he does not have a defence to the action, judgment will be entered against him and he will be obliged to pay the Judgment Creditor. On the other hand, where the garnishee is disputing his liability to pay the debt he is required to file a counter affidavit, on the date fixed for hearing the application. If the court is convinced the garnishee is owing the Judgment Debtor, it shall make the order nisi, absolute and the garnishee shall be made to pay the sum. Where he fails to pay, the Judgment Creditor can levy execution by writ of fifa.
C.Payment by Instalment
Where a Judgment Debtor is willing to pay the judgment debt; but he has some financial constraints he may apply to court for payment by instalment. The application is by motion on notice supported by affidavit stating the reasons why he cannot pay in full but by instalment.
Generally when the Court grants payment by instalment no execution can be levied against the Judgment Debtor.
(ii) Enforcement of Judgment for Recovery of Land
Enforcement of judgment for recovery of land is usually enforced by a writ for possession.
Procedure for Enforcement of Land Judgments
The application is made by the Judgment Creditor through the filing of Form 3 in the Sheriffs and Civil Process Act before the Registrar of Court. The writ for possession commands the sheriff to enter the land and cause the Judgment Creditor to take possession. However, the writ for possession cannot be issued until the expiration of the date the court ordered the Judgment Debtor to leave or in the absence of any order to that effect; upon expiration of 14 days after the judgment was delivered.
(iii) Enforcement of judgment for delivery of goods
This procedure is executed by writ of delivery in Form 67 in the Sheriffs and Civil Process Act and it is the command to the sheriff to seize all the goods wherever they may be within the jurisdiction of the court and deliver them to the Judgment Creditor.
Execution by Sequestration
This is a procedure that is not often used; it is directed at the moveable and immoveable properties of the Judgment Debtor.
It is an order made on the application of the Judgment Creditor by motion on notice commanding the sheriff of the court to attach the moveable and immoveable properties of the Judgment Debtor and keep them under sequestration until the judgement debtor purges himself of the contempt. See Or 11 r 9 Judgment Enforcement Rules.
Once the properties are under sequestration, the Judgment Debtor cannot make use of them and all rents and monies due on the properties will be paid to the office of the sheriff. It must also be noted that by virtue of Sec 287 0f the 1999 Constitution, the judgment of any superior court of record in a state can be enforced in any state of the federation.
Procedure for Execution by Sequestration
The Judgment Creditor will apply to the Registrar of the Court where the judgment was delivered, for a Certificate of Judgment to be issued. The Certificate of Judgment contains all the particulars of claims, judgment and orders granted in the matter and it must be signed and sealed by the Registrar of the Court.
The Judgment Creditor or his Legal Practitioner takes the Certificate of judgment to the Registrar of the Court outside jurisdiction where he intends to execute the judgment. The Registrar of the court outside jurisdiction will enter the Certificate of Judgment in a book called Register of Judgment.
Once the certificate is registered it becomes the judgment of the court outside jurisdiction and execution can be levied in any manner within the jurisdiction.
INSIGHT BY TOKUNBO ORIMOBI LP, a full-fledged commercial law firm with offices in Lagos, Ibadan and Abuja.