Monday, 27 February 2017

PRACTICE AND PROCEDURE


RECENT LEGAL DEVELOPMENT OF AN APPLICATION FOR STAY OF EXECUTION TOGETHER WITH A GARNISHEE ORDER

NIGERIAN BREWERIES PLC V DUMUJE (2016), 8 NWLR (PT 1515) 536
Perfect case on tort of negligence, it establishes the neighborhood principle (an English law principle which says that persons should take reasonable care to avoid acts or omission which are reasonably foreseeable to likely cause injury or harm).
It is similar to the case of Donoghue v Stevenson. The legal as well as factual distinction is concerning a garnishee order granted by the court, and also the stay of execution applied for by the appellant. This is strictly with regards to practice and procedure.

GARNISHEE ORDER: a court order to a third party who owes money to a judgment debtor to pay the money to the judgment creditor.
STAY OF EXECUTION: the suspension of carrying out of a court order.

When a party receives a judgment in its favor, it will likely take steps to enforce the judgment if the other party fails to comply with its terms. The Sheriffs and Civil Processes Act provides for the enforcement of judgments and orders.
Considering that a stay of execution is entered to suspend the judgment pending the appeal, the argument was whether the application for stay of execution could prevent the judgment creditor from using his garnishee order to enforce judgment.  In the case of Purification Techniques Nigeria Limited v AG Lagos State & Ors ((2004) 9 NWLR (PT 879) 665) and Hon Justice Sotonye Denton-West v Chief Chuks Muoma SAN ((2008) 6 NWLR (PT 1083) 418, the Court of Appeal held that the existence of a stay of execution does not make it impossible for the judgment creditor to obtain his debt by other methods.

The decision of the court in the Nigerian breweries case was, that such could not occur as the application for stay of execution already imposed a fait accompli on the court of appeal. The court made efforts to distinguish between 'execution' and 'enforcement', some legal practitioners argue that such distinction is unnecessary as both execution and enforcement are ways of effecting a judgment.
I end by quoting from the case,
 “The litigation process is not a spectator sport, it does not accommodate of having persons as cheerleaders, whose presence will only be to observe and applaud the fore actors in the litigation”
                                  S.A. NWANODI wrote it

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