Nigeria: Grounds Upon Which A Nigerian Court Will Set Aside Execution Of A Judgment

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:

(i) If the judgment creditor executed the Judgment against a person other than the judgment debtor;

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.

(ii) If the person against whom the Judgment was executed, was never a party to the suit.

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.

(iii) Lack of service of the processes on the judgment debtor

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.

(iv) Lack of jurisdiction of the Court who delivered the Judgment

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.

(v) Execution of a Judgment outside the stipulated statutory period

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.

More Popular Related Articles on Litigation, Mediation & Arbitration

1.             High Court Overturns Practice Of Appointment Of Arbitrators - ENSafrica

Every so often, a judgment is passed that upsets settled ways of doing business.

2.            International Arbitration Comparative Guide - Sofunde Osakwe Ogundipe & Belgore

International Arbitration Comparative Guide for the jurisdiction of Nigeria, check out our comparative guides section to compare across multiple countries

3.            Enforcement Of Arbitral Awards - Famsville Solicitors

In the age of globalisation, increasing commercial transactions and trade is not without the prospect of dispute.

4.            Time Freezes For Purposes Of The Statute Of Limitation When An Action Is Instituted: The Supreme Court's Decision In Sifax V Migfo - AELEX

On 16 February 2018, the Supreme Court of Nigeria unanimously decided in the case of Sifax Nigeria Ltd v Migfo Nigeria Ltd that where a statute of limitation prescribes a time frame ...

5.             Procedure For Recognition And Enforcement Of Arbitral Awards In Nigeria - Fred-Young & Evans

Once the Court recognizes the award by granting leave to the creditor to register same, it shall be enforced as a judgment of that Court.

Related News

1.       SEC Nigeria Clarifies and Establishes Fiduciary Standard For Investment Advisers in Nigeria

2.      The EU Copyright Directive Is Likely To Stifle Competition And innovation

3.      Nigeria’s Code Of Governance: Keynote Address By Yemi Osinbajo

4.      Nigeria’s Code Of Governance: Welcome Address By Adedotun Sulaiman

5.      Nigeria’s Code Of Governance: 2019 Opening Remarks By Okey Enalamah

6.      New Harmonised Code of Corporate Governance – Legal Alert

7.      European General Data Protection Regulations - Highlights

8.     Company's Registered Office and Registers - Legal Alert

9.      The FRCN Nigerian Code of Corporate Governance 2018

10.  Implementation of Code of Corporate Governance Will Minimize Wastage, Corruption – Osinbajo

11.   FBNQuest Proposed Transfer of FBNQuest Trustees Limited to FBN Holdings Plc

12.  Income Tax Country-by-Country Reporting Regulations, 2018 - Legal Alert

13.  UUBO Hosts Groundbreaking Thought Leadership Forum on ICE, December 6, 2018, in Lagos

14.  The Finance Function Of The Future: Using IFRS 17 To Build A Competitive Advantage

15.   IFRS 16 to Fuel Use of JVs to Avoid Lease Capitalisation

16.  How Government And Its Agencies Can Be More Efficiently Run – The BOI Example

17.   New Transfer Pricing Regulations, Guidelines and Circular - Legal Alert

18.  #NES24: Executive and Legislature must Work Together For Nigeria’s Progress-Saraki

19.  Senate Passes Resolution Mandating CBN To Suspend Bank ATM Charges

20. ADR - Alternate Dispute Resolution Multi-Door Court House – Legal Alert