Hon. Justice Olukayode Ogunjobi
INTRODUCTION
The Oxford Dictionary defines judgment as a decision made by a court regarding the matter before it. A judgment may be interlocutory, deciding a particular issue before the case is tried or final, finally disposing of the case.
Final judgments are usually delivered after the suit is heard on merit. In certain instances, an applicant may bring post-judgment applications for consideration and determination by the Court.
I have divided the post-judgment applications into five sections:
- Declaratory and Executory judgments
- Post-judgment applications for injunction, stay of execution, stay of proceedings pending appeal, leave to appeal and extension of time
to appeal, setting aside judgments, applications for payment of judgment sum by instalments, and interpleader summons.
- General Post Judgment Applications.
- Garnishee Proceedings
- Bail pending appeal.
DECLARATORY AND EXECUTORY JUDGMENTS
A Judgment is either declaratory or executory. A declaratory judgment merely declares the parties’ rights and goes no further to provide consequential relief to the applicant. A judgment is executory, where the order declares the parties’ rights before the court and proceeds to enjoin the defendant to act in a certain way.
An example of declaratory judgment in land matters is a declaration of title to land. In such instances, the court merely declares that the Claimant is entitled to the subject land without more.
An example of executory judgment is judgment granting possession of the subject land to the Claimant.
A declaratory Judgment cannot be enforced by execution since it merely declares the right of the Claimant. Also, such judgments cannot be stayed. A post-judgment application for a stay of execution of a declaratory judgment ought to be refused, and the application struck out. See Shell Petroleum Development Company Limited v. Ojiowhor Monday Amadi & Sons (2011) LPELR-3204(SC).
The rights which a declaratory judgment confers on the Claimant can only become enforceable if another and subsequent judgment relying on the rights it declares so decrees. In a declaratory judgment declaring title to land, the claimant in a post-judgment application may apply for an order of possession. In such a post-judgment application, the court ought to grant possession.
POST-JUDGMENT APPLICATIONS PENDING APPEAL
(i) Stay of execution pending appeal
The common post-judgment application in civil proceedings is an application for a stay of execution or injunction pending appeal.
An application for a stay of execution seeks a postponement, halting, or suspension of a court’s judgment. It is a post-judgment application often sought by the judgment debtor pending the determination of his appeal against the decision.
Post-judgment applications always apply to appealable judgments. They cannot be filed where there is no right of an appeal. A judge ought to strike out or dismiss a post-judgment application filed on a decision that is not appealable. On the one hand, the law is that a judgment creditor is entitled to the fruit of his judgment. On the other hand, the law also confers a right of appeal on a judgment debtor, which is complemented by a right for a stay of execution or proceedings pending appeal. A judge in post-judgment applications must strike a balance between the two competing rights of the parties. The right of a judgment creditor must be considered vis-a-vis the likelihood of the judgment being set aside on appeal.
The first requirement in considering a grant or refusal of an application for a stay of execution is that there must be a pending appeal before a post-judgment application for a stay of execution can be heard. A Court will not consider an application for a stay of execution regarding an invalid appeal. See Mobil Producing Nigeria Unlimited v Chief Simeon Monokpo (2003) LPELR-1886 (SC). Where there is no pending appeal, a post-judgment application for a stay of execution should be refused.
In addition to the pending appeal, the applicant must establish exceptional circumstances to warrant the grant of stay. The category of exceptional circumstances is not closed. It involves a consideration of some collateral circumstances and, perhaps in some cases, inherent matter which may, unless the order for stay is granted, destroy the subject matter of the proceeding or foist upon the Court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyse in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case and in particular even if the Appellant succeeds in the Court of Appeal, there could be no return to the status quo. See A.U. Deduwa & Ors v. Emmanuel Amoma Okorodudu & Ors. (1974) LPELR-935(SC).
The principles governing the grant or refusal of stay of execution pending appeal had been stated in a plethora of authorities to include the following: (1) In considering the nature of the subject matter in dispute, whether maintaining the status quo until final determination of the appeal in the case will meet the justice of the case. (2) Whether the appeal succeeds, the Appellant will not be able to reap the benefit of the Judgment on appeal. (3) In granting a stay of execution, the Court exercises a discretionary power which must be exercised judiciously and judicially. (4) A discretion to grant or refuse a stay must consider the competing rights of the parties to justice. (5) A discretion that is biased in favour of an applicant for a stay does not adequately take into account the respondent’s equal rights to justice is a discretion that has not been properly exercised. (6) The onus is on the party applying for a stay pending appeal to satisfy the Court that refusing a stay would be unjust and inequitable in the peculiar circumstances of his case.
(ii) Injunction Pending Appeal
In declaratory judgment, the proper post-judgment applications pending appeal are for an injunction pending appeal or a postjudgment application for possession.
The primary consideration for granting a post-judgment application for an injunction pending appeal is also the existence of exceptional circumstances which include:
- Where the subject matter of the dispute will be destroyed if an injunction is not granted.
- A situation of hopelessness would be imposed on the court, especially an appellate court.
- Where execution will paralyse the right of appeal.
- Where the order of the court would be rendered nugatory, and
- Where execution will prevent a return to status quo if the appeal
Succeeds. See Ndaba Nigeria Limited v. UBN Plc (2009) LPELR-
8844(CA) (Pp. 97-106 paras. F-F)
(iii) Leave to Appeal & Extension of Time to Appeal
Leave is required in Interlocutory Appeal, except where the ground(s) of appeal is/are on law. The time limit to hear and determine a Motion for leave to appeal is 14 days for Interlocutory Judgment and three months for Final Judgment. Note that the application cannot be heard outside the above time limit. Indeed, it must be heard and determined within the time, and the Notice of Appeal must also be filled within the periods above. See Owoniboys Tech. Services Ltd. v.
John Holt Ltd. (1991) 6 NWLR (Pt.199) 550.
Once the Motion cannot be determined within the prescribed time, it lapses, as a lower court cannot extend the time for an appellate court. See Osalumhense v. Agboro (2005) 16 NWLR (Pt. 959) 204.
The jurisdictional issue is always treated favourably when granting leave to appeal. See Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527. This is so because it can be raised for the first time on appeal. See Nnonye
- Anyichie (2005) LPELR-2061 (SC). However, the jurisdictional issue must be genuinely raised. See Nigerchin Ind. Ltd. v. Olaniyi Oladehinde (2006) 13NWLR (Pt. 998) 536.
(iv) Setting Aside of Judgment
Another post-judgment application is for an Order to set aside the judgment of the court. This applies to both default and judgment on merit. In Oyegun v. Nzeribe (2010) 7 NWLR (Pt. 1194) 577 at 595(SC), the Court defines a judgment on the merit thus:
“A judgment or ruling on the merit is obtained where the case has been argued, and the Court has decided which party is right”.
A default judgment is obtained due to a party’s failure to defend a suit. See UTC v. Pamotei & Ors. (1989) 2 NWLR (Pt.103) 244. 22 The locus classicus for the conditions to be met in setting aside a default
Judgment is Williams v. Hope Rising Voluntary Society (1982) LPELR3484(SC) on pages 9-11 (B-B).
(v) Stay of Proceedings
This arises from an interlocutory decision of the court. Some of the principles enunciated in decided cases are: (a) Stay should be granted where the appeal is likely to terminate the case. See Odogwu v. Odogwu (1990) 4 NWLR (PT.143) 224 at 235. (b) Stay should be granted where an application is pending at the Court of Appeal. See Mohammed v. Olawunmi (1993) 4 NWLR (PT.281)254 at 277-278. (c) Once records of appeal have been transmitted and entered, proceedings must be stayed. See Ikpeazu v. Ogah (2016) LPELR 40845(CA). However, this principle does not have general application to interlocutory appeals. The consideration is on the likely impact of the outcome of the appeal on proceedings in the lower Court. See Order 4 Rule 11(2) of Court of Appeal Rules, 2021. Rule 11 reads:
“(1) After an appeal has been entered and until it has been finally disposed of, the Court shall be seised of the whole of the proceedings as between the parties thereto. Except as may be otherwise provided in these Rules, every application therein shall be made to the Court and not to the lower court.
(2) Nothing in sub-rule(1) above shall be construed as required the lower court to order stay of proceedings, or adjourn sine dine, proceedings in relation to matters or proceedings in the lower court that are not impacted by or to which the appeal entered in the Court of Appeal does not relate to.”
Under Order 4 Rule 11(2) of the CAR 2021, a lower court shall not be required to order a stay of proceedings or adjourn a matter sine die in relation to matters or proceedings before the lower court that are not impacted by an appeal that has been entered or to which the appeal does not relate. Key points about this provision:
- It aims to prevent the lower court from unnecessarily staying proceedings or adjourning matters indefinitely when an appeal is filed.
- The stay of proceedings or adjournment should only apply to matters directly impacted by or related to the appeal. This provision is intended to (a) Reduce the number of interlocutory appeals that could be taken together with an appeal against the final judgment. (b) Prevent the filing of interlocutory appeals solely to obtain a stay of proceedings at the lower court. It does not entirely bar the lower court’s granting of a stay of proceedings. However, it sets a higher threshold for parties seeking a stay of proceedings when filing an interlocutory appeal.
In summary, this provision allows the lower court to continue proceedings on matters not directly affected by the appeal, potentially speeding up the judicial process and preventing unnecessary delays.
This approach reflects a balance between allowing appeals to proceed while not unduly hindering the progress of related matters in the lower court that are not directly impacted by the appeal.
(vi) Interpleader Summons
An interpleader summons is a legal procedure initiated when a property in dispute has been attached or seized in executing a court order. The critical aspects of interpleader summons are provided under Section 34 of the Sheriffs and Civil Process Act and Order VI Rule 2 of the Judgment Enforcement Rules. It determines whether property seized by a Sheriff belongs to the judgment debtor (and thus can be seized) or to someone else claiming it (and thus cannot be seized).
The process involves: (a) The claimant (person claiming ownership) applies to the court, (b) The court issues a summons to the judgment creditor and the claimant, and (c) A hearing is held to determine ownership of the property. In the proceedings, the claimant is considered the plaintiff, and the judgment creditor is the defendant. The claimant has the burden of proof to establish their title or interest in the disputed property. This allows the court to adjudicate the ownership claim and any damages arising from the Sheriff’s execution of the writ. The court can order the property to be sold and direct how the proceeds should be applied if appropriate.
The purpose is to provide a mechanism to resolve competing claims to property subject to execution, allowing third parties to assert their rights before the property is sold to satisfy a judgment debt. See First
Bank of Nigeria Limited v. Dr. Kenneth Ken-Worgu (2023) LPELR60770(CA).
(vii) The Slip Rule
Following the principle that a Judge becomes functus officio after delivery of Judgment, he has no power to correct his error, except for clerical slips. See Order 26 Rule 7 of High Court of Lagos State (Civil Procedure) Rules, 2019.
This power is called the slip rule. The slip rule is another postjudgment application.
In law, the slip rule allows a court to correct an accidental slip or omission in a judgment or order. It is derived from the common law principle that a court has the inherent power to correct mistakes in its orders to ensure that the order reflects the true intention of the court: Asiyanbi & Ors v. Adeniji (1967) LPELR-25384(SC) on pages 1213 (A).
The slip rule is designed to rectify clerical or arithmetical mistakes, errors arising from an accidental slip or omission, or errors of a similar nature in a judgment or order. Substantive changes are not allowed. Thus, the slip rule cannot be used to make substantive changes to the judgment or order. It is limited to correcting minor errors that do not alter the court’s core decision or reasoning:
Asiyanbi & Ors v. Adeniji (supra).
Therefore, such clerical slips should not be invoked and used as a subterfuge for reviewing or rehearing a case. Thus, in Min. of Lagos, Mines & Power & Anor v. Akin-Olugbade & Ors (1974) NSCC Vol. 9,
489, the applicant, under the guise of the slip rule, sought a review of the Supreme Court’s judgment, but that application was refused and dismissed.
GENERAL POST-JUDGMENT APPLICATIONS
Judgment (Enforcement) Rules “The Rules” made under section 94 of the Sheriff’s Civil Processes Act stipulate Rules for post-judgment applications. Order II rule 10 of the Rules provides that postjudgment application shall be made as an application for interlocutory order in that Court. See Order 43 of the 2019 Rules.
The Court may also stay execution in some instances of the previous judgment.
Order II rule 14 of the Rules, the rules provide that:
“Whenever any proceeding shall be pending in the court against the holder of a previous judgment of the court by the persons against whom the judgment was given, the court may, if it appear just and reasonable to do so, stay execution of the judgment either absolutely or on such terms as it may think just until a judgment shall be given in the pending proceeding.”
(viii) Judgment upon fulfilment of certain conditions
Rule 15 of Order II also provides that where the judgment is to the effect that any party is entitled to any relief, subject to or upon the fulfilment of any condition or contingency, the party so entitled may, upon fulfilment of the condition or contingency, and demand made upon the party against whom he is entitled to relief, apply to the Court for leave to issue execution; and the Court may, if satisfied that the right to relief has arisen according to the terms of the judgment, order that execution issue accordingly, or may direct that any issue or question necessary for the determination of the rights of the parties be tried as in a suit.
(ix) Death of Judgment debtor before execution
Suppose any person against whom a judgment has been given shall die before execution has been fully done. In that case, an application for execution thereof may be needed against the legal representative or the estate of the person so dying as aforesaid. If the court thinks it is proper to grant such an application, the judgment may be executed accordingly.
Procedure for execution where parties have changed. Order IV Rule 9(i)(a) of the Rules provides that:
“Where any change has taken place by death or otherwise in the parties entitled or liable to execution; the party alleging himself to be entitled to execution may apply to the Court for leave to issue process accordingly. If satisfied that the party applying is entitled to execution, make an order to that effect, or may order that any issue or question necessary to determine the rights of the parties shall be tried in any of the ways in which any question in any action may be tried.”
Order II rule 27 provides that:
“where subject to the provisions of rule 25 of this Order, a judgment creditor desires to issue a judgment summons in a Court other than that in which the judgment was given, or the judgement was given in a Magistrate’s Court, and the judgment creditor desires to issue in the High Court any process affecting the immovable property of the judgment debtor which may not lawfully issue out of a Magistrate’s Court, the judgment creditor may apply to the Court in which the judgment was given for the transfer of the proceedings subsequent to judgment to a Court having jurisdiction to issue the judgment summons or process against immovable property. In such cases, the appropriate order is to grant the application.”
(x) Execution after two and six years.
Order IV rule 8 of the Rules provides that:
“(1) As between the original parties, process, otherwise than against the person, may issue at any time within six years, and against the person at any time within two years, from the date of the judgment which is immediately sought to be enforced.
- After such periods respectively process shall not issue without leave of the court, but no notice to the judgment debtor before applying for such leave shall be necessary.
- Where leave is given, a note thereof shall be made on the process.”
Where a judgment is not executed within the prescribed period, a post-judgment application can be made ex-parte to renew the judgment. If the judgment sought to be renewed is old, for example, over 10 years, the Court should order that the judgment debtors be put on notice.
GARNISHEE PROCEEDINGS
One method of enforcing money judgments is through garnishee proceedings. In garnishee proceedings, a judgment creditor may attach or garnish debts that another person owes to the debtor in satisfaction with the judgment debt. The debt owed by the other person to the judgment debtor, on being attached, is ultimately paid by that person to the judgment creditor.
In brief, the essence of garnishee proceedings is the enforcement of money judgment, in which money is in the hands of a third party but held in favour of the judgment debtor.
Who is a Judgment Creditor?
Under the Sheriffs and Civil Process Act, “a judgment creditor was defined as “any person for the time being entitled to enforce a judgment”. In the same vein, Halsbury’s Laws of England” defines a judgment creditor as “a person who has obtained or is entitled to enforce a judgement or order”.
Who is a Judgment Debtor? Under the Sheriffs and Civil Process Act, “a judgment debtor was defined as “a person liable under a judgment”. In the same vein, Halsbury’s Laws of England defines a judgment debtor as “a person against whom a judgement or order was given or made”.
In Nigeria, the procedure for garnishee proceedings is regulated by the
Sheriffs and Civil Process Act and the Rules made under section 94 of the Act. Section 83 of the Act is the primary provision on the method of commencement of garnishee proceedings.
The commencement of garnishee proceedings by the judgment creditor is by way of an ex parte application, which shall be supported by an affidavit deposed to either the judgment creditor or his legal practitioner stating that judgment has been obtained and is still unsatisfied. The extent of the amount so unsatisfied shall be said to be that a third party within the State (Jurisdiction) is indebted to the judgment debtor. Where the garnishee proceedings are before a court other than the court that gave the judgement, a certified true copy of the judgement shall be attached to the affidavit supporting the ex parte application. The garnishee may be ordered to appear in court on a specified date to show cause why an order should not be made against him for payment to the judgment creditor the amount of the debt owed to the judgment debtor. At least 14 days before the hearing date, when the garnishee is expected to appear and show cause, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.
The service of the order nisi on the garnishee binds the debt in the hands of the garnishee such that any payment of the debt to the judgment debtor or its alienation, without leave of court, shall be null and void. The garnishee may, within eight days of the service of the order nisi on him, pay into court the amount alleged to be due from him to the judgment debtor or, if that amount is more than sufficient to satisfy the judgment debt and the costs, a sum to satisfy that debt and costs. Upon payment of the said amount to the court, the proceedings against the garnishee shall be stayed.
Where a garnishee disputes his liability to pay the debt, he does not have to make any payment in court but must appear on the return date and dispute his liability. The court may order that any issue or question necessary for determining his ability be tried or defined in any manner in which any issue or question in any proceedings may be tried or determined or may refer the matter to a referee. Also, a garnishee may contend that the debt sought to be attached belongs to some third person or that a third person has a lien or charge on it. In this case, the court may order such third person to appear and state the nature and particulars of his claim upon such debt, but if the third person does not appear, the court, on proof of service of the order nisi, may proceed to make an order as if such third person has appeared. Where the third person appears and after hearing his allegation and those of any other person who the court may order to appear, the court may order execution to levy the amount due from the garnishee or any issue or question to be tried and determined and may bar the claim of such third person or may make such order, upon such terms concerning any lien or charge or otherwise as the court shall think just.
Where the garnishee does not, within the time prescribed, pay into court the amount due from him and does not dispute the debt or where he does not appear as ordered, the court, on proof of service, may make the garnishee order nisi absolute.
Not every debt is attachable under it. For a debt to be attachable under garnishee proceedings, it must be either due or accruing to the judgment debtor. The debt must be present and existing and must be owed to the judgment debtor, or there must be a right to receive the debt from the judgment debtor.
Garnishee Proceedings and Stay of Execution
There is a line of authority of the Court of Appeal that a judgment creditor can initiate garnishee proceedings notwithstanding the existence of an application by the judgment debtor for a stay of execution of the judgment. See Purification Tech. (Nig.) Ltd v Attorney General of Lagos State (2004) 9 NWLR (Pt. 879) 665, where the court per Galadima JCA (as he then was) held that “given the distinction that exists between execution and garnishee proceedings for the enforcement of a judgement, I do not think the existence of an application seeking for an order staying execution of a judgement does preclude a judgement creditor from seeking to use some other legal method to enforce judgement. There is a clear distinction between the execution of judgements and other methods of enforcing judgments, such as garnishee proceedings. The distinction is brought out by the definition of “writ of execution” in section 19 of the Sheriff’s and Civil Process Act. The writ of execution includes the writ of attachment and sale, the writ of delivery, the writ of possession, and the writ of sequestration. It excludes a garnishee proceeding. See N.A.O.C v. Ogini & Ors (2017) LPELR-42663(CA) (Pp. 10 paras. C).
The position of the law is that although an appeal does not operate as a stay of execution, where an appeal has been filed and served, and there is an application for a stay of execution, parties are prohibited from tampering with the subject matter of the appeal as such could impose a fait accompli on the appellate court. See Vaswani Trading Co Ltd v. Savalakh (1972) 12 SC 77 at 82.
The decisions of the Court of Appeal, that garnishee proceedings are strictly between the judgment creditor and garnishee regardless of the nature of proceedings and that an application for stay of execution does not preclude a judgment creditor from using other methods of enforcement of the judgment, such as garnishee proceedings, are still the law today simply because one is not aware of any decision of the Supreme Court on the points.
By section 83(1), a judgment creditor who intends to enjoy the fruit of his judgment is expected to commence garnishee proceedings against garnishees that he has ascertained are indebted to the judgment creditor.
However, in practice, it is common amongst virtually all practitioners to commence garnishee proceedings against all banks as garnishees without ascertaining which banks are indebted to the judgment debtor. Making all banks garnishees in garnishee proceedings is regarded as casting the net while hoping it catches a fish or two. The practice not only contravenes the provision of the law but also imposes undue obligations on the garnishees, all of whom have to respond through their appearances, primarily by legal practitioners, in a matter that has no bearing on them. The Court of Appeal roundly condemned the practice, per Affen JCA in GTB v. Tafida & Anor.
(2021) LPELR-56131(CA) (Pp. 45-46 para. F)
It is substantially yet to be the practice for the bench or the judges to deprecate the practice and where, if necessary, impose sanctions on the judgment creditor/garnishor. It must be said that the expectation is for the judgment creditor to have conducted the required investigation into the assets of the judgment debtor before commencing garnishee proceedings.
BAIL PENDING APPEAL
An application for bail pending appeal is very much unlike the one for bail before conviction, as the applicant no longer enjoys the presumption of innocence. Although Order 17 Rule 13 of the Court of Appeal Rules 2021 provides that the Court of Appeal or High Court may admit an Appellant bail pending determination of his appeal on an application duly made by him, an application for bail appeal pending appeal ought to be made to the Court of Appeal not the trial court since the Appellant/Applicant no longer enjoys the presumption of innocence upon conviction by the trial court.
The law is well settled that the Court of Appeal will not grant an application for bail pending an appeal unless there are exceptional and unusual reasons why bail should be given to the applicant. In Ogundimu Munir v. FRN (2008) LPELR-4693(CA), it was held on pages 11-13(C) that the courts consider the following in determining exceptional circumstances- (1) if the applicant, being the first offender, had previously been of good behaviour. (2). If substantial grounds of law are involved in the appeal. (3). About the heavy congestion of appeals pending in the courts, a refusal of bail to the applicant will result in the whole, or a considerable portion of the sentence imposed on the applicant being served before the applicant’s appeal can be heard. (4) Where the application is based on ill health and the applicant cannot get the necessary treatment in prison or where the machine used in treating the applicant is not movable, thus cannot be moved to prison. In such circumstances, bail will be granted to prevent the applicant’s health from being in serious jeopardy.
CONCLUSION
Post-judgment applications are vital to our legal system. They ensure the effective implementation of court decisions while safeguarding the rights of all parties involved. As I have explored throughout this paper, these applications cover various issues, from enforcing judgments to preserving rights pending appeals.
The complexity and diversity of post-judgment applications underscore the need for judges to carefully consider each case, balancing the competing interests of judgment creditors and debtors. It is crucial to remember that while judgment creditors are entitled to the fruits of their judgments, the rights of judgment debtors to pursue appeals must also be protected.
Particular attention must be paid to the proper use of garnishee proceedings. The current practice of indiscriminately naming all banks as garnishees without prior investigation into the judgment debtor’s assets is problematic. This approach not only contravenes the spirit of the law but also places an undue burden on financial institutions. We, as judiciary members, must discourage this practice and, where necessary, impose appropriate sanctions.
As we move forward, it is essential that we continue to refine our understanding and application of post-judgment procedures. This includes staying abreast of legal developments, critically examining current practices, and striving to balance efficiency and justice in our courts.
Ultimately, post-judgment applications aim to ensure that court decisions are meaningfully implemented while maintaining the integrity of the judicial process. By approaching these applications with diligence, fairness, and a commitment to justice, we can enhance the effectiveness of our legal system and uphold the rule of law.
An extract from a paper delivered by His Lordship at the 15th Lagos State Judges Retreat, 2024.