AN OPEN LETTER TO THE HONOURABLE CHIEF JUDGE OF LAGOS STATE AND STAKE HOLDERS IN THE LEGAL PROFESSION.
Your lordship,
Introduction
Judgments delivered by courts of law are regarded as binding, authentic, official and judicial determination of the court in respect of claims and action before it. For litigants, enjoying the fruits of judgement is crucial and uncompromising. A key overriding function of the judicial process is to enable the judgment creditor to reap the fruits of judgment with every sense of due satisfaction and where necessary have compensation, performance, compliance and restitution. Nevertheless, there have been instances where judgments of courts are disobeyed, frustrated and/or ignored. Such challenges in the judicial process are overwhelming experiences for litigants and indeed a stigma for the justice delivery sector.
It is trite that Courts have duty not to deprive a successful litigant of the fruit of his litigation. A.E.S.S. Ltd v. Aina Adeosun & Sons Ltd (1993) 5 NWLR (Pt 293) 377 @ 382. However, a successful litigant would need to set in motion the fulcrum upon which the court will exercise its duty. This duty of court has found legal empowerment in existing Judgment Enforcement Procedure Rules such as the Sheriff and Civil Process Act where the means of enforcement can be achieved to prevent extra judicial means of enforcement.
The process of enforcement is broadly referred to as execution. Lord Denning aptly summarized the process when he stated in the case of Re: Overseas Aviation Engineering (GB) Ltd. (1963) CH 24 at pp 39,40, “Execution means quite simply the process for enforcing or giving effect to the Judgment of the court……. In case when execution was had by means of a common law Writ when such as fiery facia……. It was legal execution; when it was had by means of an equitable remedy, such as the appointment of a Receiver, then it was equitable execution because it was the process for enforcing or giving effect to the judgment of the Court.”
Enforcement is the last stage of the judicial process after the legal right, claim or interest has been determined on the merit in a Judgment or Order by the Court which remains to be enforced.
Notably, enforcement of judgment depends on the type of judgments. Judgment could either be consent, default, judgment in rem, judgment in personam, executive, interlocutory and final. Any category of judgement given by the court may be enforced by the court or by the court below or by any other court which has been seised of the matter as the court may direct.
This humble call is to bring the urgent attention of your Lordship and all relevant stakeholders towards the execution of judgement, depriving litigants’ fruits of judgment by judicial and extra judicial means and also to proffer possible solutions.
HINDRANCES TO ENFORCEMENT OF JUDGMENT BY EXTRA JUDICIAL MEANS
It is mindful to briefly point out the existence of judicial means utilized by lawyers and Attorneys General to deprive successful litigants the fruits of judgment. Either through application for stay of execution, arrest of judgment or interpretation of judgment. Such means though legally recognized, contributes to one of the many reasons there are congestions of cases in our judicial system. Most of the processes set in motion to stop judgment turn out frivolous or serve as a means of delaying enforcement of judgment.
That is why I am, and will concentrate on the acts of engaging unlawful or extra judicial means to deprive successful litigants the fruits of their judgment, some of which are:
Use of law enforcement agencies
Several incidences in land disputes or other cases where judgment have been delivered in favour of litigants have had setbacks in terms of enforcement. It is more like, after the court proceedings, the stronger and “connected” which in most cases is the unsuccessful litigant get personnel in security agencies to threaten and frustrate the execution of judgment.
Sometimes, lawyers who intend to intervene in the circumstances are also intimidated, threatened and even arrested.
In another scenario, since most of the execution cannot be done without the presence of the police, the judgment creditor in most cases must provide the logistics to move on. Where this is not possible, the execution will be delayed and or frustrated.
Use of thugs
Some unsuccessful litigants engage thugs to threaten, frustrate and prevent the enforcement of judgment. This is very common when the execution is on immovable properties such as land.
*Executive Disobedience and Lawlessness*
Apart from judgement involving a positive outcome in favour of the Executive, there is ever present in the body polity of this Country the tendency for those who man the Executive Arm of Government to disregard as well as disobey the judgments of courts. This uncivilized and unlawful conducts constitute one of the greatest obstacles and bottlenecks to the enforcements of judgments and orders made by the court. In so doing the executive utilises law enforcement agencies under their authority to harass and intimidate successful litigants.
POSSIBLE SOLUTIONS TO ENFORCEMENT OF JUDGMENT
Successful litigants still have legal means spelt out in various laws to enforce their judgment in order to benefit from the fruits of judgment.
Enforcing a particular judgment will depend on the type of judgement. The Supreme Court in the case of Tukur v. Governor of Gongola State generally itemized the methods of enforcing different kinds of judgment as follows:
a. A judgment or order for the payment of money may be enforced by a writ of fiery facias, garnishee proceedings, a charging order, a writ of sequestration or an order for committal on judgment debtor summons.
b. A judgment for possession of land may be enforced by a writ of possession, a writ of sequestration or committal order.
c. A judgment for delivery of goods may be enforced by a writ of specific delivery or restitution of their value, a writ of sequestration or a writ of Committal.
d. A judgment ordering or restraining the doing of an act may be enforced by an order of committal or a writ of sequestration against the property of the disobedient person.
e. Attachment of immovable property of judgement debtor.
f. A judgment creditor can file a motion on notice seeking the leave of court to execute an immovable property of a judgment debtor. What is really required is for the judgment creditor to show to the satisfaction of the court that there are no movable properties to be attached to satisfy the judgment debt. Leedo Presidential Hotel Ltd v. B. O. N. Ltd (1993) 1 NWLR (Pt 269) 334 at 349
Garnishee proceedings
A garnishee proceeding allows a judgement creditor to attach garnishee debts which another person owes to the judgment debtor in satisfaction of the judgment debt. Simply put, it entails attachment of debt due from a third party to the judgment debtor and the use of the amount in liquidating the judgment debt.
Judgment summons
This empowers a successful litigant to commit the judgment debtor to prison for default in paying the judgment debt despite possessing the capability to pay the debt. Unless the judgment debtor is poor and could not pay, the judgement creditor can commence this procedure. The judgment debtor is summoned to court and examined orally on oath in court as to his means and if at the end of the exercise the court is satisfied of his ability to pay, it may make any of the orders provided for in that regard, one of which is committal of the judgment debtor to prison.
Specifically, the use of law enforcement agencies and thugs to frustrate enforcement of judgment attracts criminal sanction that could be commenced with the use of lawyers.
ROLES OF COURT AND LITIGANT IN JUDGEMENT ENFORCEMENT
Duty of courts
It is settled law that a court of law has the jurisdiction to protect its own judgement from being ridiculed or disparaged. Therefore, where the intention of an application is to make nonsense of its own judgement it must stoutly stand against that line of action. Okoya v. Santilli (1991) 7 NWLR (Pt 206) 753 @ 770.
Where a successful litigant files a proper writ to enforce the judgment of court, the court is duty bound to grant such person the opportunity to benefit from the fruits of his or her judgement.
*Duty of litigants*
The process of execution of judgment is through the initiative of the judgment creditor. It behooves on the successful litigant to ensure he/she benefits from the fruits of judgment no matter the means used to frustrate it. Hence, as a duty for the litigant, it is important to set in motion the process of enjoying the fruits of judgment. The various procedure a successful litigant can file judicially to wade off extra judicial activities are discussed above.
On Filing a Notice of Appeal
Some officers of the Judiciary will if not curbed use their office to further dent and ridicule the image of the judiciary. The face of the judiciary in the public is becoming blurry and people are fast losing hope in what is meant to be the last hope of the common man in seeking and reaping fruits of justice. May I humbly be permitted to refer your lordship to the following cases where the courts have held that a Notice of Appeal in its real nature cannot and can never operate as a stay of execution; in the case of: – T.S.A. IND v. KEMA (2006) 2 NWLR (Pt. 964) 300, the court held that “An Appeal does not operate as a stay of execution. [Josiah Cornelius Ltd. V. Ezenwa (1996) 4 NWLR (Pt. 443)391; Pharmacists’ Council of Nigeria v. N.A.P.P.M.D. (2005) All FWLR (Pt. 270) 772 referred to.] (P. 316 para. C)”. AJOMALE v. YADUAT (No. 2) (1991) 5 NWLR (Pt. 191) 266, the court held that “An Appeal does not operate as a stay of execution. So a stay of execution is not automatic upon filing of an Appeal. But a court has a discretion to order a stay of execution either unconditionally or upon such conditions as it may deem fit and it will do so only as a matter of a judicial discretion which must be exercised judicially and judiciously and only in favour of an applicant who has made out in his affidavit evidence before the court some special circumstances for the grant of it. (P.289 paras. F-G)”. A.P.C. v. KARFI (2018) 6 NWLR (Pt. 1616) 479, the court held that “Even where an Appeal has been lodged against the decision of the High Court to the Court of Appeal, section 17 of the Court of Appeal Act, Cap. C36 of the Laws of the Federation of Nigeria, 2004, categorically warns litigants that an Appeal per se shall not operate as stay of execution. [Vaswani Trading Company v. Savalakh & Co. (1972) 12 SC 77 referred to.] (Pp. 519-520, paras. H-A)”. ABIOLA & SONS BOTTLING CO. LTD v. SEVEN-UP BOTTLING CO. LTD (2012) 15 NWLR (Pt. 1322) 184, the court held that judgment of a court subsists until it is set aside by a court of competent jurisdiction. In any case, an Appeal cannot operate as a stay of execution. [Vaswani Tradiing Co. Ltd. V. Savalakh (1972) 12 SC 77 referred to.] (P. 203, para. G)”. YARO v. AREWA CONSTRUCTION LTD. & ORS. (1998) LPELR-3517(SC), the court held that “An appeal does not operate as a stay of execution.” PER KUTIGI J.S.C. (Pp. 17-18, Para. G) CITED CASES;Ikabala & Ors. V. Ojasipe (1972) 4 S.C. 86.
Your lordship, may I also submit with respect, that most judicial staffs, do not know, or maybe they know but chooses to ignore the fact and law that Judgment delivered by courts of law are regarded as binding, authentic, official and judicial determination of the court in respect of claims and action before it. For litigants, enjoying the fruits of judgement is crucial and uncompromising. We believe that a key overriding function of the judicial process is to enable the judgment creditor to reap the fruits of judgment with every sense of due satisfaction and where necessary have compensation, performance, compliance and restitution. Nevertheless, there have been instances such as this, where judgements of courts are either frustrated and/or ignored. Such challenges in the judicial process are overwhelming experiences for litigants and indeed a stigma for the justice delivery sector.
Your lordship, as a repetition and not necessarily to sound like a broken record, it is trite that even our Courts have duty not to deprive a successful litigant of the fruit of his litigation. Which can be found in the case of A.E.S.S. Ltd v. Aina Adeosun & Sons Ltd (1993) 5 NWLR (Pt 293) 377 @ 382. This duty with respect, finds legal empowerment in the existing Judgment Enforcement Procedure Rules such as the Sheriff and Civil Process Act where the means of enforcement can be achieved to prevent extra judicial means of enforcement. This is what most law abiding citizen are doing, but getting frustrated on by appropriate officers in the judiciary saddled with such responsibilities to act within the ambit of the law.
It is even a settled law that a court of law has the jurisdiction to protect its own judgment from being ridiculed or disparaged. Therefore, where the intention of an application is to make nonsense of its own judgement it must stoutly stand against that line of action. Okoya v. Santilli (1991) 7 NWLR (Pt 206) 753 @ 770. your lordship, if the courts can be bound by this, why should a judicial officer or staff be seen to be a hindrance to a creditor in reaping the fruits of judgment. Their discretion (staffs of court) in line with the law is very paramount here, and this is absent at present.
It is my final submission on this, that the acts of truncating the process of enforcement, especially where one is within the ambit of the law are very dangerous. It is also sad that it appears to be seen that the courts hold judgment creditors to ransom on the basis of a notice of appeal, when the position of the law has always been that a notice of appeal does not and should never operate as a stay of execution.
I make bold to further conclude, that in any society where rule of law thrives, regard for justice and the judicial system is paramount. Enforcing the judgment of courts quickly, conscientiously and easily within any society is regarded as the key components of stabilizing the equilibrium of society. Perhaps, allowing situations like this, which deprive the benefits of judgment encourages resort to self-help, and same would do more harm than good. Most especially in a democratic society, respect for rule of law and established techniques ought to wade off any contrary operations.
I sincerely, urge your lordship and all relevant stakeholders to look into this, so that a successful litigant isn’t deprived his/her fruits of judgment.
CONCLUSION
In any society where rule of law thrives, regard for justice and the judicial system is paramount. Enforcing the judgment of courts quickly, conscientiously and easily within any society is regarded as the key components of stabilizing the equilibrium of society. Perhaps, allowing situations like resort to self-help, use of extra judicial means to deprive the benefits of judgment would do more harm than good. Most especially in a democratic society, respect for rule of law and established techniques ought to wade off any contrary operations.
Despite the provisions of various laws specifying methods for enforcement of enforcement, there are still widespread cases of disobedience to court orders and judgements.
RECOMMENDATION
1. The Constitution of the Federal Republic of Nigeria 1999 as Amended Second Schedule, Part I, item 57 should be in the concurrent legislative list which should include elaborating on the mechanisms for execution of judgement. (Relevant Stakeholders can assist in this regard via appropriate bills and passing of same at the National Assembly).
2. Law enforcement agencies should be legally saddled with the responsibility of enforcement of judgment at different levels of government. (this brings us to empowering the court sheriffs being the enforcement officers of the Judiciary) In any situation of contrary action, a mechanism should be established to timely sanction the erring officer(s).
SIGNED
Olajide A. Abiodun
08023952729
