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Execution of Judgments and Means of Enforcement Available to a Court in Nigeria

Published online by Cambridge University Press:  28 July 2009

J. O. Fabunmi  and
O. O. Akai
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Summary

Although the judiciary is the weakest branch of the government and must depend on the executive branch to enforce its judgments, it is not the integrity, or prestige of the judiciary that is at stake when the executive fails to comply, or to comply satisfactorily with court orders and judgments. In such situations, the authority of the state is called into question.

Clearly, where private persons are unable to concretise their remedies by enforcement, the relevance of the whole judicial process is called into question. In this regard one may say that the existing rules of enforcement are sufficiently geared to prevent that anomaly.

In actions involving private parties the judiciary is an impartial arbiter and it is up to the party aggrieved to pursue his claim to the logical conclusion. The Sheriffs and Civil Process Laws are designed to facilitate this. Not only are officers of state placed at his disposal but he has the ultimate weapons, in an action for committal of an irresponsible judgment debtor. Yet, the formalities appurtenant to the issuance and execution of the various writs have appropriately built in devices, that allow the respondent to comply at any stage and thus save himself financial loss, or loss of his liberty.

In the field of enforcement of non-money judgments the ultimate weapon is an action for committal initiated at the suit of the plaintiff. The same safety devices are available. In particular, where possible, the Court will employ another means of enforcing the judgment, or order.

Although, there is provision for the appointment of commissioners (eg. in sequestration proceedings) and referees (in enquiries) there is little resort to these provisions, not only because sequestration proceedings are extremely rare but probably also because there is seldom need for the appointment of referees in our courts.

It is in the enforcement of judgments against the state and government functionaries that rapid changes have occurred. Although, injunctions and mandamus will still not lie against government, it can now be sued and indirectly be made to obey court orders through actions directed against state functionaries. There is increasing willingness on the part of the courts to subject judicial, or quasi-judicial actions of government to judicial review. The problem remains as usual that of giving teeth to such orders since the very executive against which orders are made, is depended on to enforce such orders. Hence the judiciary has developed safety valves in actions for judicial review to prevent collision with the executive. Utmost discretion is exercised by judges in granting orders for review and they will generally do so only as a last resort

Type
Research Article
Information
Journal of African Law , Volume 32 , Issue 2 , Autumn 1988 , pp. 164 - 181
Copyright
Copyright © School of Oriental and African Studies 1988

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References

1 (1978) F.C.A. 109, 114Google Scholar The Court held that self-help was not execution.

2 4th ed. at para. 401. The Court also adopted the definition of R., Denning M. in Re Overseas Aviation Engineering (G.B.) Ltd. [1962] 3 All E.R. I2, p. 16Google Scholar. See Adesida v. Abebi, supra, at p. 115Google Scholar.

3 The English common law, the doctrines of equity and statutes of general application in force on 1 01, 1900 are received by local enactmentsGoogle Scholar. See, e.g. for Lagos State, The Law Miscellaneous Provisions Law Cap. 65 1973, Laws of Lagos State, Law of England (Application) Law Cap. 57 Vol. III 1978Google Scholar Laws of Ogun State 1978; Law of England (Application) Law, Cap. 60 Vol. III Laws of Oyo State 1978Google Scholar; Law of England (Application) Law Cap. 57 Vol. III Laws of Ondo State 1978Google Scholar.

4 E.g. Cap. 189 Laws of the Federation and Lagos (L.F.N.) 1958, Vol. 6Google Scholar; Cap. 127 Laws of Lagos State 1973; Cap. 123 Vol. 3 Laws of Northern Nigeria 1963Google Scholar; Cap. 118 Vol. VI Laws of Ogun State 1978Google Scholar; Cap. 113 Vol. VI Laws of Ondo State 1978Google Scholar; Cap. 117 Vol. VI Laws of Oyo State 1978Google Scholar.

5 E.g. Cap. 189 Vol. X Laws of the Federation of Nigeria made under section 94 of the Sheriffs and Civil Process Act; Cap. 127 Vol. V. Laws of Lagos State, 1973Google Scholar; Cap. 123, Vol. 5 Laws of Northern Nigeria 1963Google Scholar.

6 They are based on 24 & 25 Geo, 5 c. 53 and 17 & 18 Vict. c. 125.

7 See Aguda's, A.Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria, an annotation of the various Rules of CourtGoogle Scholar.

8 See, for example, Order 35, r10 High Court Laws of Oyo, Ogun, Ondo and Bendel States as well as sections 16, 35 and 12 of the High Court Laws of Eastern Nigeria (Cap. 61 1963), Northern Nigeria (Cap. 49 1963), and Lagos State (Cap. 52) respectively.

9 See s. 54 of the Sheriffs and Civil Process Act and s. 54 of the Northern Nigeria Sheriffs and Civil Process Law, which apply to execution in the Northern Region where the parties are Muslims. There is very little evidence by way of reported decisions to indicate that this provision is resorted to, probably owing to the universality and popularity of the Sheriffs and Civil Process Law, as well perhaps of the secular nature of the constitution and the (now Federal) police force.

10 For example, see, the Customary Courts Law and Rules Cap. 33 of Lagos State; Customary Courts Law and Rules Cap. 33 of Oyo State 1978; Area Courts Civil Procedure Rules 1971 Laws of Kwara State (the provisions are identical in other area A courts of the ten Northern States).

11 Ss. 20 & 25 of the Sheriffs and Civil Process Act, Cap. 189 L.F.N.

12 Ibid. s. 29.

13 Ibid. s. 34.

14 Ibid. s. 44.

15 This is by virtue of s. 1 of the Land Use Act No. 6 of 1978 which vests ownership of Lands in the State Governor. This position is similar under the Land Tenure Law Cap. 59 1963 of the Northern States, where provision is made by Ord. 19, r. 3 Area Court Civil Procedure Rules Kwara State 1971.

16 S. 55, Sherins and Civil Process Act.

17 Ibid. s. 58.

18 See Barclays Bank D.C.O. Ijebu-Ode v. Adedapo (1962) N.N.L.R. 165Google Scholar; Eastern Nigeria Cooperative Rubber Marketing Society v. Okorie (1963) VII E.N.L.R. 118Google Scholar.

19 S. 83, Sheriffs and Civil Process Act Cap. 189.

20 See for example, Ord. 19, r. 12, Ogun, Ondo, Oyo and Bendel High Court Rules; Ord. 39, rule 14 Lagos State High Court rules. See for a full discussion, Aguda, op. cit. pp. 268–369Google Scholar. This must be by way of an application to the court.

21 S. 72 of the Sheriffs and Civil Process Act and Ord. 9, r. 13 of the Judgment (Enforcement) Rules. It is well settled that this section applies and not the Rules of the Supreme Court of England; see Omopena v. Adelaja 19 N.L.R. 17Google Scholar; Olofa v. Bella Adedibu Mogaji (1960) N.N.L.R. 193Google Scholar; Rhodes v. Obiyan Suit No. 10/79/761 of 27/1/78 contained in Fawehinmi, Gani, The Law of Contempt of Nigeria (case book) 1980, p. 249Google Scholar. But it was held that the section is inapplicable to prohibitory injunctions Dohtrty v. Doherty (1964) L.L.R. 226Google Scholar, Akinsanya v. Shorun (1975) 10 C.C.H.CJ. 1593 at 1596Google Scholar; in Fawehinmi, Gani, op. cit. at p. 73Google Scholar; contra, Otegbeye v. FEDECO & Anor AB/125/77, in Fawehinmi, op. cit. at p. 222Google Scholar.

22 S. 82 Sheriffs & Civil Process Act; Ord. XI r. 8 & 9 of the Judgment (Enforcement) Rules.

23 See, Ord. 18 r. 8 of the Magistrates' Courts (Civil Procedure) Rules Cap. 82 of Lagos State; Ord. XIII r. 6 (I) Eastern Nigerian Magistrates’ Courts Rules, Cap. 82 1963; also see section 69, District Courts Law, Northern Nigeria, Cap. 33 1963.

24 See s. 62 of the Magistrates' Court Laws, Cap. 82, 1973 Laws of Lagos State.

25 See n. 9 above.

26 See Ord. 11 & 19 Area Court (Civil Procedure) Rules 1971 Kwara State.

27 See Ord. 20.

28 E.g. see Ord. 16 Customary Court Rules, Oyo State; Ord. 14, Customary Court Rules Lagos State.

29 For the Southern States, See Ord. 14 r. 9 Customary Courts Law, Lagos State.

30 Specified periods graduated according to the range in the amounts of the judgment debt are stipulated in the Area Court Rules. See Ord. 18 Area Court r. 11 (Civil Procedure) Rules 1971 Kwara State.

31 (1976) 1 F.N.R. 4Google Scholar.

32 Ord. XI, r. 5 of the Judgment (Enforcement) Rules.

33 See the Rent Control and Recovery of Premises Law No. 9 1976 of Lagos State.

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35 See Ord. XI, r. 4 of the Judgment (Enforcement) Rules.

36 E.g. See Ord. 19, r. 9, Oyo, Ogun and Bendel High Court Rules respectively; Ord. 7 r. 1 High Court Law Northern Nigeria; Ord. 21, r. 1, High Court Rules Eastern Nigeria.

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42 See nn. 29 & 30 above.

43 See n. 32 above.

44 Judgment (Enforcement) Rules Ord. 2 r. 12(a) & (b) See n. 41 infra. But any such judgment by default may be set aside by the court upon terms as to costs or otherwise as the court may think fit.

45 Also see Ord. 2 r. 12(a) & (b) Lagos State High Court Rules, See Ogunleye v. Arewa (1960) W.N.L.R. 9Google Scholar; Ibiono v. Udo & Anor 5. E.N.L.R. 69Google Scholar; U.A.C. Ltd. v. Krikchi 13 W.A.C.A. 219Google Scholar. (Failure to file defence), Albert Ugwuokt Ogiri & Anor v. Ugwu Idu and Thirty-Nine Ors. (1972) II E.C.S.L.R. p. 179Google Scholar; Abiegoe v. Ugobodume (1973) 1 S.C. 133Google Scholar (Failure to file statement of claim).

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58 Cap. 42, Laws of the Federation 1958.

59 The Attorney-General has constitutional power to institute, take over or discontinue any criminal proceedings; section 160 and 191 of the Federal Republic of Nigeria Constitution 1979. See however The State v. Ekundayo & anor. (unreported) suit No. KWS/56/78 cited in Fawehinmi, Gani, op. cit. pp. 261–263Google Scholar where the judge ex mero motu initiated the prosecution of the accused persons for flagrant, public and contumacious disobedience of an injunction. They were convicted but discharged with a rebuke. It is most unlikely that the approach of the judge will be tolerated now by the higher courts.

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62 Ibid., see n. 56.

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64 See n. 21 above.

65 This provision is absent in the Area Court, Civil Procedure Rules. See n. 9 supra.

66 E.g. Ord. 12, r. 2 Customary Court Rules Lagos State and Ord. 15, Area Court Rules Benue Plateau State.

67 Ojo v. Lister Motors & Anor (1980) 1 OY.H.S.C. 1Google Scholar.

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74 S. 6.

75 S. 7.

76 S. 10.

77 S. 10(2); see also s. 15(2).

78 S 13.

79 s 37(2).

80 S. 26(1) & (2).

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82 Cap. 149 Laws of the Federation of Nigeria (as amended). The Petitions of Right Laws of the States are to the same effect.

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89 Ibid., s. 112(4).

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93 Ord. XVII, r. 7.

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95 Ibid., s. 90.

96 See Ogedegbe v. Ogedegbe, (1964) L.L.R. 209Google Scholar where the applicant was restored into possession under s. 17 of the Married Women's Property Act 1882.

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98 S. 91.

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100 E.g., see the law of Lagos State, No. 9 of 1976, and various provisions in the State Laws.

101 Ss. 14 & 15.

102 S. 23.

103 S. 25.

104 S. 26.

105 S. 36(8).

106 S. 13

107 [1986] 3 N.W.L.R. 39Google Scholar.

108 Ibid., at p. 822.

109 (1982) S.C. 1Google Scholar.

110 No. 35 of 1974.

111 No. 1 of 1977, ss. 7, 8, 12 as amended

112 No. 56 of 1971, Ss. 11 & 12.

113 No. 30 of 1977, S. 5.

114 No. 32 of 1974, Ss. 6, 10, 17, 21, 22, 26.

115 S. 32.

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117 Sections 53 & 51 of the Sale of Goods Law, Cap. 116 Oyo, Ogun and Ondo States and of the Sale of Goods Act 1893. The Supreme Court has signalled its intention to provide ready remedy for consumers who are inflicted with unmerchantable goods. Anigaolu, J.S.C. in Nigerian Bottling Co. Ltd. v. Ngonadu (1985) N.W.L.R. 739Google Scholar, said “The duty of the seller is to supply goods reasonably fit for the purpose for which they are bought (this is elementary). But nothing appears to be elementary in this country where it is often the unhappy lot of consumers to be inflicted with shoddy and unmerchantable goods … while commending the respondent in her tenacity in pursuing her claim in the court below, one would trust that other citizens who have suffered, or are suffering, from purchases of unmerchantable goods would readily have recourse to the courts for a remedy”. This case centred on Product Liability.

118 S. 52 Sale of Goods Law and Act.

119 See Ngonadu's Case, n. 108 above.

120 No. 3 of 1965.

121 S. 9 of the Hire Purchase Act 1965Google Scholar.

122 Ibid., Ss. 10 & 12.

123 (1962) 2 All N.L.R. 176Google Scholar.

124 (1956) N.R.N.L.R. 81Google Scholar.

125 E.g. Environmental Sanitation Edict, No. 12, 1985 of Lagos State. There are similar statutory provisions in nearly all the states of the Federation.

126 Ibid., S. 23.

127 See Abiola v. Ijoma (1970) 2 All N.L.R., 268Google Scholar damages for offensive smells from a backdoor poultry yard and injunction in favour of plaintiff. See, generally, Kodilinye, , The Nigerian Law of Torts, 1983, pp. 90Google Scholaret seq.

128 Ransome-Kuti v. Attorney-General of the Federation (1985) 2 N.W.L.R. 211Google Scholar.

129 S. 3.

130 See Ransome Kuti's Case, supra n. 122.

131 Ibid.

132 Ibid. S. 63 Cap. 133; S. 85 Cap. 139. The Corporation will pay any money judgments out of its funds.

133 (1981) 2 N.C.L.R. 459Google Scholar. The matter went on appeal and the judgment was upheld but the amount of damages was reduced considerably and we are reliably informed that government has paid the amount.

134 See Lastra Construction (Nig.) Ltd. v. Attorney-General Ondo State of Nigeria, (1978) 1 L.R.N. 363Google Scholar where it was held that government cannot be restrained by injunction because Petitions of Right does not lie for injunction (at p. 366, per Orojo, C. J.Google Scholar). The 1979 Constitution altered that position, see s. 6(6) (b) thereof. Contra Iluyomade and Eka, Cases and Materials on Administrative Law in Nigeria, 1984, p. 230Google Scholar.

135 Unreported, Suit No. CA/E/90/84 decided by the Court of Appeal Enugu Judicial Division on 2 05, 1985Google Scholar.

136 It appears the doctrine of severability is known to Nigerian Law. Two instances are found in Balewa v. Doherty [1963] 1 W.L.R. 949 esp. at p. 955Google Scholar where some sections of the Commissions and Tribunals of Inquiry Act 1961 L.F.N, were held void and the statute void in respect of those sections only. Also in Attorney-General of Ogun State v. Attorney General of Federation (1982) 3 N.C.L.R. 166 at p. 181Google Scholarper Fatayi-Wiluams, C.J.N., p. 190Google Scholarper Udo Udoma, J.S.C., p. 190Google Scholarper Irikefe, J.S.C., p. 191Google Scholarper Bello, J.S.C. and p. 197Google Scholarper Eso, J.S.C. where section 3, 4(3)Google Scholar of the Public Order Act as modified by the President was held void for inconsistency with the Consitution.

137 See Akanle, O., “Governmental Liability in Damages and the Constitution” (1982) N.C.L. Rev. 205 at pp. 212–213Google Scholar.

138 There is an apparent lack of a determinative decision of the Supreme Court on the test to be applied in determining the degree of severability that will invalidate the whole statute. Balooun, J. in Chief Balogun v. Attorney-General Lagos State (1981) 2 N.C.L.R. 589, 652Google Scholar suggested that the test is to examine whether the legislators intention would tally with the end result of the severed parts; if not, the statute is wholly invalid.

139 [1986] 1 N.W.L.R. 621 at pp. 633–634Google Scholar.

140 See newspaper reports in The Punch Saturday 4 08, 1984 p. 1Google Scholar; The Guardian, Thursday 4 10, 1984 pp. 1Google Scholar & The Guardian, Friday 14 12, 1984 pp. 1 & 5Google Scholar.

141 See Akinpelu & 2 Ors. v. A.G. Oyo State, Suit No. 1/312/82 (Oyo State High Court decided on 15 12, 1983Google Scholar). It was not possible to reach the chief culprit the Governor who had flagrantly encouraged the breach of an order of injunction restraining all officers and servants of the government from implementing or executing the provisions of the invalid Local Government Law 1982. Yet, it was possible to reach functionaries purporting to act as officials of that Local Government by committal orders. This was only possible, however, because the police was not under the control of the State Government.