NIGERIA Law and Practice Contributed by: Adeyinka Aderemi, Omono Blessing Omaghomi and Ibukun Enigbokan, Streamsowers & Köhn
Writ of attachment and sale (writ of fieri facias) A judgment sum becomes immediately due and pay- able upon a pronouncement in a judgment. A writ of fieri facias (fi fa) is issued for execution against the goods, chattels and immovable property of the judg- ment debtor for the recovery of any sum of money payable under a court judgment in the event of default or failure of payment. The writ is obtained by complet- ing the praecipe form at the registry of the court. The writ empowers the sheriff of the court to seize and sell the judgment debtor’s property within the jurisdiction to satisfy the judgment debt (except the clothing and bedding of the judgment debtor or their family and the tools and implements of their trade, to the value of NGN10). The proceeds from the sale are used to cover sale expenses and offset the judgment debt, with any remaining balance being given to the judgment debtor. In cases where the court ordered the judgment sum to be paid in instalments, the writ can only be issued after the default in payment of some instalment, and execution may be for the remaining sum and costs then unpaid or for a part of it as the court may order (either in the judgment or subsequently). Also, unless they are perishable in nature or the judg- ment debtor requests so in writing, the seized prop- erty cannot be sold until the expiry of a period of at least five days from the date of seizure. Garnishee proceedings This is a method of enforcing a monetary judgment by recovery through third parties (garnishees) who are in custody of the judgment debtor’s funds or indebted to the judgment debtor. The judgment creditor steps into the position of the judgment debtor to collect such funds. In most cases, the garnishees are bankers of the judgment debtor. The judgment debtor files an application ex parte (without notice to the judgment debtor and the gar- nishees) and, upon being satisfied that the case is deserving, the court would make an order nisi (initial order) directing the garnishees to disclose the amount standing to the credit of the judgment debtor in their custody and show cause why such sums should not
be attached and paid to the judgment creditor in sat- isfaction of the judgment. The order nisi is served on the garnishees, and each garnishee is expected to file affidavits in court disclosing the judgment debtor’s monies in its custody, if any. Upon disclosure by the garnishees, the order nisi is made absolute against the garnishees. This mandates them to pay the judgment debtor’s funds disclosed as being in their custody to the judgment creditor, in satisfaction of the judgment sum. Bankruptcy/insolvency proceedings In this mode of enforcement, where a judgment debtor defaults in payment of the judgment sum, the judgment creditor is at liberty to commence an action against the judgment debtor under bankruptcy proceedings in the case of an individual debtor or winding-up pro- ceedings in the case of a company. However, it must be shown that the judgment debtor is unable to pay its debt in all instances. Generally, it involves filing a petition and providing evi- dence of bankruptcy or insolvency. Once the judg- ment debtor is declared bankrupt or insolvent, their assets are liquidated and the proceeds are distributed among creditors according to their priorities. Writ of possession This is issued for the recovery of premises where the judgment of the court is for the recovery of land, or for the delivery of possession of land, in an action other than an action between landlord and tenant. An application for a writ of possession is made by filing a praecipe form. Writ of sequestration This is issued upon application to a judge against the property of a person who has had an order or warrant of arrest, commitment or imprisonment made against them but cannot be found, or where a person is taken and detained in custody without obeying the judgment of a court. An application for a writ of sequestration is made to a judge in the prescribed form.
211 CHAMBERS.COM
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