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Chief M.O. Olatunji v. Owena Bank (PLC) & Anor. (SC.349/2002, 25 April 2008)

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➥ CASE SUMMARY OF:
Chief M.O. Olatunji v. Owena Bank (PLC) & Anor. (SC.349/2002, 25 April 2008)

by Branham Chima.

➥ ISSUES RAISED
Execution of judgement sum;
Writ of FiFa.

➥ CASE FACT/HISTORY
The appellant herein was the plaintiff, he was an Owner of a Saw Mill Factory at Ado Ekiti. On the 13th of August, 1997, the first respondent herein appointed and instructed the second respondent a licensed auctioneer, to remove Vi et armis all the Saw Mill equipments. The appellant demanded the return of the equipment without success. He sued at Ado Ekiti High Court for the return of the equipments and for damages for wrongful and illegal removal of the equipments. The High Court in its judgment delivered on the 21/3/2000, did not order for the return of the equipments but awarded damages in the Sum of ₦30,793,000.00 in favour of the appellant against the respondents. The appellant as the judgment creditor immediately on the same date i.e 21/3/2000 applied for a writ of execution of the judgment to enforce the payment of the judgment debt. The writ was issued on the same day but was served on the 1st respondent on the 27/3/2000. The 1st respondent accepted the service of the writ and issued its own bank draft for the total sum of the judgment debt aforesaid.

On the 28th day of March 2000 the respondents herein as applicants filed a Motion on Notice praying for: “An Order of Court setting aside the execution of judgment levied by the plaintiff/judgment creditor/respondent in this suit on 27th day of March, 2000, on the ground that the said execution was conducted illegally, unlawfully and/or flagrant violation of law calculated to overreach the decision of this court in Motion for stay filed and pending in this Court.”

Available:  DALEK NIGERIA LIMITED v. OIL MINERAL PRODUCING AREAS DEVELOPMENT COMMISSION (OMPADEC) (2007)

It appears that the respondents had on the same 21/3/2000 filed a motion to stay the execution of the judgment pending appeal which was also filed on the same date. It was the motion to set aside the execution of the judgment on which the 1st respondent had issued a cheque in settlement thereof that resulted in this appeal.

➥ ISSUE(S) & RESOLUTION(S)
[APPEAL ALLOWED]

I. Whether the application for and the issuance of a Writ of Execution of Judgment for Sum of money payable under a judgment immediately after delivery of judgment is invalid under the Sheriffs and Civil Process Act or the Rules made there under?

RESOLUTION: IN APPELLANT’S FAVOUR.
[A JUDGEMENT OF A COURT IN RESPECT OF MONEY TAKES EFFECT THE MOMENT IT IS PRONOUNCED
‘Now, considering these provisions, the question may be asked when does a judgment to pay a sum of money becomes recoverable. Can a judgment creditor apply for a writ of fifa immediately a judgment is pronounced or must a judgment creditor wait for a default or failure to satisfy the judgment debt or must the judgment creditor wait for 14 days or 3 days after the judgment? In my view, unless the court otherwise orders a judgment of court to pay money takes effect from the day it is pronounced or delivered in court. However, the court at the time of making any judgment or order, or at any time afterwards, may direct the time within which the payment or other act is to be made or done. A person directed by a decree or order of court to pay money or to do any other act is bound to obey the decree or order without any demand for payment or performance, and if no time is therein expressed he is bound to do so immediately the decree or order is pronounced. That is the language and meaning of the provisions of section 20(1) of the Sheriffs and Civil [Process] Act. This makes sense, for it behooves a successful plaintiff to act promptly, lest he loses the fruits of his victory. See BANK OF WEST AFRICA LTD v. NATIONAL INVESTMENT AND PROPERTIES CO. LTD.(supra), OLAYINKA v. ELUSANMI [1971] 1 NMLR 277. DADA v. THE UNIVERSITY OF LAGOS AND OTHERS [1971] 1 UILR 344.’

Available:  Quo Vadis Hotels Limited v. Commissioner of Lands (1973) - SC

A WRIT OF FIFA MAY ISSUE IMMEDIATELY A JUDGEMENT IS PRONOUNCED
‘A writ of fi fa may issue to enforce a judgment or order for the payment to, or for the recovery by, any person of money. The practice which is well established for many years, is clear, that a writ of fifa may issue immediately upon payment becoming due upon a pronouncement in a judgment and as a matter of course without leave and “without the necessity of a prior notice to; or for prior service of the judgment or order upon the judgment debtor. See LAND CREDIT COY OF IRELAND v. FERMOY (supra). Accordingly, a judgment requiring the defendant to pay money to the plaintiff, is enforceable by writ of Fi Fa immediately it is entered even though no time is specified for the payment to be made and even though notice of the judgment, still less the judgment itself has not been served on the debtor. To answer the issue, I hold that a judgment to pay money as in this case is recoverable by the issuance of a “writ of fifa immediately the judgment is pronounced. It is only when the judgment debt is fully satisfied that can render the issue of the writ of execution void. See TOTAL v. E.M.C.C [1972] 8-9 SC 64. See also FAR EAST MERCHANTILE v. PHILLIPS [1974] 11 SC 225.’]
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✓ DECISION:
‘Having resolved the only issue canvassed by both the appellant and the respondents in favour of the appellant, this appeal succeeds and is allowed by me. I set aside the decisions of the lower courts. I hold that the ‘writ of attachment was regularly and lawfully” issued. I award the appellant costs at the High Court, Court of Appeal and in this court at ₦3,500, ₦7,500 and ₦50,000 respectively jointly against the respondents.’

➥ FURTHER DICTA:
⦿ EVERY JUDGEMENT TAKES EFFECT ON PRONOUNCEMENT
In the case of INTERCONTRACTORS NIGERIA LTD v. U.A.C. OF NIGERIA LTD (supra) or (1988) (Pt. 1) Vol. 9 NSCC 737 at 752. This court per KARIBI WHYTE JSC stated:- “It is well settled that every judgment takes effect on pronouncement – see BANK OF WEST AFRICA LTD v. N.I.P.C LTD [1962] LLR 31; OLAYINKA v. ELUSANMI [1971] 1 NMLR 277. A judgment debtor seeking to stay the execution must show that he is challenging the judgment, or is asking for time to comply with the terms of the judgment.” — D. Musdapher JSC.

Available:  Samuel Osigwe v. PSPLS Management Consortium Ltd & Ors. (2009)

➥ LEAD JUDGEMENT DELIVERED BY:
D. Musdapher, JSC

➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
⦿ FOR THE RESPONDENT(S)

➥ MISCELLANEOUS POINTS

➥ REFERENCED (LEGISLATION)

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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