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

posted 4 years ago

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.

Author

posted 6 days ago

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