Business Regulations, Law & Practice | |
Business Regulations, Law & Practice | |
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Sunday, April 07, 2019 / 11:17AM / By Emmanuel Ekpenyong and Serah Sanni
The
essence of civil proceedings is for the judgment creditor to enjoy the fruits
of his Judgment. This may be achieved by the judgment creditor executing the
Judgment by the attachment and sale of the moveable or immovable property of
the judgment debtor, attachment of funds belonging to the judgment debtor in
the possession of a third party under the garnishee proceedings or committal of
the judgment debtor to prison for refusal to settle the judgment debt under the
judgment summons proceedings.
However
the following are the grounds upon which a Nigerian Court will set aside
execution of a Judgment:
There
are instances where a judgment creditor who is desperate to obtain payment of
the judgment debt, attaches the movable property of a third party in the
premises of the judgment debtor. Upon the application of the third party with
proof that the property belongs to him and not the judgment debtor, the Court
would set aside the execution of the Judgment.
A
judgment creditor cannot legally execute a Judgment against a person who was
not a party to the suit upon which he obtained Judgment. This is so even if the
person against whom the Judgment was executed is the judgment debtor's
successor-in-title. For instance, if a defendant dies before Judgment is
delivered, the judgment creditor ought to bring an application to substitute
the defendant's name with that of his successor-in-title and serve the
successor-in-title with all the processes in the suit.
If the
judgment creditor fails do so and the Judgment is delivered against the
defendant, the judgment creditor cannot sustain an execution against the
defendant's successor in title. This is because the successor-in-title was not
a party to the suit. In law, the defendant and his successor-in-title are
distinct and different persons.
If the
judgment creditor failed to effect service of the processes in the suit on the
judgment debtor in line with the provisions of the relevant statutes on service
of processes, the Court would set aside the execution of the Judgment against
the judgment debtor. This is because service of processes on the judgment
debtor goes to the root of the suit and affects the jurisdiction of the Court
to validly enter Judgment against the judgment debtor. Lack of service is a
clear breach of the judgment debtor's fundamental right to fair hearing and
makes the proceedings conducted a nullity and of no legal effect whatsoever.
Jurisdiction
of Court is a threshold issue. If the Court who delivered the Judgment which
the judgment creditor executed against the judgment debtor had no jurisdiction
in the first place over the subject matter of the suit or exceeded its
statutory jurisdiction, the judgment debtor may apply to set aside the
execution of the Judgment.
Order
IV Rules 8 (1) and (2) of the Judgment Enforcement Rules provides that a
Judgment shall be executed against the property of a judgment debtor within 6 (six) years and against
the person of the judgment debtor within 2
(two) years from the date in which the Judgment was delivered,
failing which the judgment creditor must file an exparte application for leave of Court to
execute the Judgment outside the stipulated statutory period.
If a
judgment creditor, without leave of court, execute a Judgment outside the
stipulated statutory period, the judgment debtor may apply to the Court to set
aside the execution of the Judgment.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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