Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

Enforcement of Judgment in Nigeria

and the “Multiplicity Challenge”

1
Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

Introduction
Administration of justice is not concluded until the judgment creditor reaps and enjoys the
benefits of judgment. 1 To ensure that judgments are enforced, Nigerian law, like the law in
other jurisdictions, has a legal framework 2 that allows the use of several legal procedures 3 for
the enforcement of judgment creditor’s rights. An apparent lapse has appeared in the practice
and regime of judgment enforcement in Nigeria over the years, which the current legal
framework has not addressed. This apparent challenge borders on double-recovery and the
simultaneous deployment of multiple judgment enforcement procedures to satisfy judgment
debt(s). The kind of judgment contemplated in this paper is executory judgment.

This, which in the paper we will call the

“Multiplicity Challenge”, takes various
forms. Two of these forms are (i) the
deployment of enforcement procedures by
multiple judgment creditors in relation to
the same property(s) and/or asset(s) and (ii)
the commencement of enforcement
procedures against multiple parties by the
judgment creditor(s) before ascertaining
where/with whom the property/asset of the
judgment debtor is lying.

The existing legal framework does not

provide for an efficient regime to guard
against the incidences of abuse that may ensue on account of a judgment creditor deploying
multiple enforcement procedures simultaneously. The state of the jurisprudence appears to be
tilted towards the much-repeated mantra that “a judgment creditor is entitled to reap the fruits
of his judgment”. Typically, not much emphasis is given to prevent the judgment creditor from
reaping more than it has sown and/or harming too many trees in a bid to reap fruits, in a
proverbial sense. It is the latter point that this paper seeks to address.

The (i) Judgment Creditor, (ii) Judgment Debtor and (iii) a third-party guarantor, garnishee or
security provider (as the case may be) are typical parties to any judgment enforcement
proceedings. The roles of the Judgment Creditor and the Judgment Debtor are clear being the
“victor” and “vanquished”, so to speak, in the outcome of the adversarial proceedings. The
third party may either be a bank or entity with whom the funds of a judgment debtor are
deposited or a person or entity who has pledged their assets to secure an obligation in respect
of which a judgment has been made against the Judgement Debtor.

1 In FBN Plc. v. Agbara (2015) 8 NWLR (Pt. 140) 47, 2, the Court held that “the Court must as a duty remember that a judgment creditor
is entitled to the full benefits and fruits of his judgment by the Court and nothing else”.
2 (i) Sheriffs and Civil Processes Act, CAP S.6 LFN 2004 (the “SCPA”), (ii) Judgment Enforcement Rules, and (iii) Foreign Judgments

(Enforcement Reciprocal) Act 1961, Cap F35, LFN 2004 and (iv) the Reciprocal Enforcement of Judgments Ordinance, 1958. These
legislations are exclusively Federal.
3 Garnishee proceedings, Writ of Fifa, Judgment Summons, Writ of sequestration, Writ of Possession and Warrant of Possession

1
Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

Legal framework for Enforcement of Judgment

The extant body of judgment enforcement legislation makes ample provisions on the
procedure, temporal and other statutory requirements to be complied with by a judgment
creditor upon a judgment being made in his favour. The relevant principles attendant to this
are narrated sequentially below. There are more principles governing each mode of
enforcement such as the Writ of Fieri Facias, Judgement Summons, Writ of Possession.
However, expatiating these modes is not the aim this paper.

First, the law is that, the judgment of the Court becomes binding and should be enforced by the
parties immediately it is passed, except a given time of enforcement is stipulated in the
judgment.4

Second, enforcement procedures are resorted to and activated when the judgment debtor fails
to comply with a judgment without demand, especially for executory judgments. 5 Enforcement
procedures may be brought after three days of a judgment being passed.6 In cases on land, a
writ of possession is not to be issued until after the expiration of the day on which the
Defendant is ordered to give possession of the land or 14 days after the judgment if no day is
specified.7 It is worthy of note that the judgment creditor must fall call against the movable
property of the judgment debtor and can only resort to the immovable property after obtaining
the leave of the Court if the execution on the movable property does not settle the judgment
debt.

Third, time-bar limitation also applies to judgment enforcement proceedings. Enforcement

procedures can be commenced by the judgment creditor as of right, if brought within two years
or six years for judgment in personam and in rem respectively. Otherwise, outside the
prescribed time limits, the leave of court has to be resorted to. It is important to note that by
virtue of Section 12 (2) of the Limitation Laws of Lagos State, “an action will not be brought
upon a judgment after the expiration of twelve (12) years from the date on which the judgement
became enforceable”. There are similar provisions in other states. 8

The judgment enforcement laws do not address the wrongful deployment of judgment
enforcement process or mechanisms, thereby affording a lacuna that allows for the
perpetration of the Multiplicity Challenge. In fact, Nigeria does not have any central repository
or virtual register of judgments or their enforcements. In case law9, the courts only adjudge as
irregular or wrongful, non-compliance with certain procedural requirements in the course of
judgment enforcement. This non-compliance include instances where the (i) leave of the Court
is not sought when required, (ii) requirements of the rules and/or the Sheriff and Civil Processes

4 Section 287 (1-3) CFRN and Government of Gongola State v. Tukur (1989) 4 NWLR (Pt. 117) 592 at 608.
5 Ibid.
6 Order IV rule 1 (2) of the JER
7 Order IV rule 1(1) of the JER.
8 For instance, Section 11, Limitation Act.
9 See for example Bhojosons Plc v. Kalio (2000) FWLR 2356 (Pt. 14) 2376 D-F and Macaulay v R.Z.B Osterreich Akiengesell Schaft of

Austria (2003) LPELR-1802(SC)

2
Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

Act are not complied with or (iii) execution is neither authorized nor justified by the writ of
execution or by the Judgment.

In practice, the issues appear to be much more complicated than simple non-adherence to form
and procedure. The Multiplicity Challenge may appear in different forms (discussed below) and
its operation in practice has posed a threat to the efficient administration of justice and
judgment enforcement.

Multiplicity Challenge and the Various Forms

Employment of multiple procedures for judgment enforcement by the Judgment Creditor for a
single judgment against a Judgment Debtor
It is good practice for a judgment creditor to adopt a single enforcement procedure at a time
and not resort to another, except the former has proven ineffective or insufficient. However,
this is not always the case in practice, considering that judgment creditors may be over-zealous
and the Nigerian justice system embraces multiple enforcements. Some judgment creditor(s)
in a bid to speedily recover the judgment debt adopt different enforcement procedures
simultaneously and untidily.

For example, a judgment creditor being owed a judgment debt for monetary sums may set in
motion simultaneously (i) garnishee proceedings against funds of the judgment debtor in the
custody of a third party and (ii) enforcement processes (writ of fifa) against movable assets of
a judgment debtor. Ordinarily, this practice is allowed and is regularly explored but it presents
challenges and may be considered as amounting to abuse of court process.10

In the first instance, the problem of over-compensation or double compensation presents itself.
A judgment creditor may obtain proceeds greater than the judgment sum he is entitled to in
the process. Although, the Nigerian court may readily dismiss an action when it finds that the
judgement debt has already been discovered, there are no provisions to nip such double

10 Adegbanke v. Ojelabi et al. (2021) LPELR-54992 (SC).

3
Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

recovery in the bud at its contemporaneous instance. In the second instance, the deployment
of the court process in the manner done by the judgment creditor is indecorous and abusive.

Traditionally and typically, the Courts consider abuse of process in the context of pre-judgment
proceedings11 and not usually in the post judgment context considered in this paper.
Notwithstanding that, the categories of what may be considered as abuse of court process are
open-ended12 and the argument can still be made. The Supreme Court in Saraki v. Kotoye 13 held
that “the concept of abuse of judicial process is imprecise. It involves circumstances and
situations of infinite variety and conditions”. Imaginably, but incredulously, Order IV rule 11 in
a way, may support the employment of multiple enforcement procedures if not progressively
interpreted. It provides that “process may be issued concurrently in one or more divisions or
districts, but the costs of more than one process or execution shall not be allowed against the
judgment debtor except by order of the court”.

Institution of enforcement procedures by multiple judgment creditors in relation to the same

property and/or asset
This occurs when more than one judgment creditor has obtained orders absolute against a
particular account/asset of the judgment debtor. There are provisions of the statute as to how
this tussle will be resolved and as to which of the orders will take priority. Section 32 of the
SCPA establishes the priority doctrine 14, to the effect that where there are writs by more than
one person against a property, the order of priority shall be determined by the respective times
the writ holders applied to the Court registrars for the issuance.

In more complicated cases, an interpleader by sheriff summons may be issued in respect of the
parties to resolve who the judgment sum/property should accrue to. Upon the issuance of the
summons, any subsequent action pending in relation to the execution will be stayed. 15 These
provisions do not cater to a scenario where the proceeds from the sale of the property or the
judgment sum will exceed the judgment debt. It is expected that the first judgment creditor will
take the benefit and pass it to the subsequent judgment creditor that comes next in term of
priority.

The Judgment Creditor’s commencement of garnishee proceedings against multiple parties to

ascertain the location of the judgment debtor assets
This phenomenon is the typical situation in a majority of garnishee proceedings in Nigeria,
where a majority of all commercial banks are served, just to discover that the judgment debtor
only has a bank account in a few or even only one of the served banks. This practice activates

11 Ibid; the SC held that “there is said to be an abuse of the process of the Court when a party improperly uses the issue of the judicial
process to the irritation and annoyance of his opponent, such as instituting a multiplicity of action on the same subject matter, against
the same opponent on the same issues..”. however, due to the multi-territorial nature of our courts and the lack of a good database,
the abuse of court process may not be readily flagged except raised and argued by the other party.
12 Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, 188.

13 Ibid
14
This principle is traced to the Latin maxim; Qui Prior Est Tempore, Potior Est Jure; where there are two equities the
first in time prevails.
15
Section 34, SCPA.

4
Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

the judicial machinery against the different banks for no just and reasonable cause. 16 As being
practised in Nigeria, garnishee proceedings can be inefficient, a waste of resources (for persons
who have no business being garnished in the first place) and a waste of judicial resources.

Conclusions: Some Recommendations

The Multiplicity Challenge poses a major challenge in the efficient administration of justice in
Nigeria. Until it is solved by responsive legislation, the issues highlighted in the paper will persist
as they now do. The following recommendations are suggested to aid efficient administration
of justice in the context of judgment enforcement.

The Need for a Centralized Registry for Judgment Enforcement in Federal and State Courts
This office is existent in some jurisdictions. For instance, in the United Kingdom, there is the
Enforcement of Judgments Office, 17 which is a centralized unit for enforcing civil judgments
related to the recovery of money, goods and property of the courts 18. The mandate of this
registry will be to keep up-to-date data on enforcement (parties and assets related thereto) and
keep tabs on the enforcement process and administration in the respective courts. It is
germane for such centralized judgment to be created in Nigeria, such judgement should
electronic and accessible to the public (especially interested parties) with affordable fees. The
extant registries (sheriff offices) in Nigerian federal and state courts do not perform this salient
function.

The deployment of a data tracking system (“DTS”) in the Centralized Registry

A DTS will provide an automated platform for case enforcement management. The DTS should
be domiciled in the centralized registry discussed in the immediately preceding paragraph. The
DTS is automated to keep track of proceedings and assets in respect of judgment enforcement.
Enforcement proceedings instituted will be registered on the DTS as well as assets being
proceeded against this will facilitate the nipping of any Multiplicity Challenge in the bud.

16
Dr. M.A. Banire, SAN “Emerging Issue in Garnishee Proceedings in Nigeria” posted on the mabandassociates.com
website accessed on 1st March, 2021.
17
https://www.justice-ni.gov.uk/articles/enforcement-judgments-office.
18
Ibid.

5
Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

The BVN Opportunity

On February 14, 2014, the Central Bank of Nigeria in collaboration with all banks launched a
centralized biometric identification system for the banking industry known as the "Bank
Verification Number" (“BVN”) System. The purpose of the exercise is to use biometric
information as a means of first identifying and verifying all individuals that maintain or operate
accounts in any Nigerian bank.

Upon registration, all the accounts of the business entity become centralized and can easily be
traced using the unique BVN. The use of BVN to trace judgment debtor bank accounts will lend
itself as a useful tool for judgment enforcement purposes. This will also curb the incessant issue
with compelling the attendance of several banks or persons to which the judgment debtor does
not have an account or monies with.

The potential legal issue that may arise from adopting the BVN procedure in enforcement
proceedings is that the information may be the personal data of the individual involved such
that any disclosure of it may be a breach of privacy and personal data rights. We do not,
however, see such argument as being viable in the circumstances given that the disclosure in
such context could be adjudged as being made in compliance with a court order. Article 2.2 (c)
of the NDPR lends credence to this position. It provides that personal data processing shall be
lawful if “processing is necessary for compliance with a legal obligation to which the Controller
is subject”. The legal obligation in this case is imposed by the judgement.

Other recommendations include the Imposition of realistic costs against over-zealous creditors
that activate multiple enforcement proceedings unjustly, a pragmatic judicial approach towards
enforcement proceedings and collaborative regulation of enforcement procedures.

6
Enforcement of Judgment in Nigeria and the “Multiplicity Challenge”

Authors

OPEMIPO OMOYENI
Senior Associate

[email protected]

IBRAHIM HAROON
Associate

[email protected]

LOCATIONS

LAGOS OFFICE ABUJA OFFICE

6 Broad Street 2nd Floor, Abia House,
Lagos, Nigeria Plot 979, First Avenue,
Central Business District
F.C.T, Abuja.
T: +234 (1) 460 7890 T: +234 (1) 888 8881
E: [email protected]

● Corporate ● Mergers and Acquisitions ● Securities Offerings ● Project and Structured Finance ● Tax ●
Litigation and Arbitration ● Privatization ● Intellectual Property ● Employment ● Compliance ● Insurance
● Pensions ●Private Equity ● Oil and Gas ● Electricity ● Food and Healthcare ● Trade and Industry ●
Media and Entertainment ● Telecommunications and Technology ● Real Estate and Construction ●
Infrastructure ●Transport and Logistics ●

www.gelias.com