Order 9 Judgments (Enforcement) Rules
Order 9 of the Judgments (Enforcement) Rules is about Judgment summons. It contains the following rules:
- Judgment summons may issue where no default in instalments
(1) Where a court has made an order for payment of any sum of money by instalments, a judgment summons may be issued as well before as after default in payment of any instalment according to the order.
But judgment creditor may be liable for costs
(2) Where an order is made in the judgment summons proceedings before default in payment of any instalment, other than an order for the attachment and sale of the judgment debtor’s property or a new order for the payment of money more beneficial to the judgment creditor than the order for payment by instalments, no costs shall be allowed to the judgment creditor, and the court may order him to pay any costs reasonably incurred by the judgment debtor, unless the judgment debtor is proved to have been guilty of any misconduct enumerated in paragraphs (a) to (e) of section 66 of the Act. - Stay of execution
(1) Where a judgment creditor who has issued a writ of attachment and sale against a judgment debtor applies for the issue of a judgment summons against him, proceedings on the writ shall be stayed and the stay shall not be removed except by leave of the court.
(2) The judgment summons shall not be issued until the judgment creditor has paid any fees or expenses incurred in the execution of the writ.
- Travelling expenses of debtor not in district
(1) The registrar may refuse to issue a judgment summons against a judgment debtor who does not reside or carry on business within the division or district of the court to which the application for the summons is made, unless at the time of filing the praecipe the judgment creditor deposits in the court registry a sum reasonably sufficient to cover the expenses of the judgment debtor in travelling to and from the court, the amount to be fixed by the registrar.
(2) The registrar shall pay the money so deposited to the registrar of the court of the division or district where the judgment debtor resides.
(3) The last-mentioned registrar may either-
(a) encash the Treasury deposit receipt, and shall then cause the money to be-
(i) paid or tendered to the judgment debtor; or
(ii) expended in the purchase of a transport warrant or travel ticket for the
judgment debtor or otherwise applied directly to the payment of the
travelling expenses; or
(b) pay the money to the sheriff, who shall deal with it in any of the ways in which the registrar himself might have dealt with it.
(4) If the money or any part of it remains unexpended, it shall be repayable to the judgment creditor by or through the court from which the summons was issued.
- Travelling expenses to be costs: set off
The judgment debtor’s travelling expenses, whether paid in the first instance by the judgment creditor or not, shall be costs in the proceedings on the judgment summons, and shall be payable and recoverable accordingly:
Provided that such travelling expenses, and any other proper costs of the judgment debtor and compensation for the loss of his time, if allowed to the judgment debtor, may be set off against the judgment debt. - Service
(1) A judgment summons shall be served personally in accordance with the rules for personal service of an ordinary summons issued from the court from which the judgment summons is issued.
(2) The interval between service and the hearing shall be such number of clear days, not less than five, as the registrar may direct, having regard to the distance from the court of the place where the judgment debtor resides.
3) Where a judgment summons is sent for service to a foreign court, the registrar of the foreign court shall, according as the summons is or is not served, send the copy of the summons, or a notification that it has not been served, to the registrar of the home court so that it is received not less than two clear days before the return day. - Interim attachment
An order under section 62 of the Act for the interim protection of property shall be enforceable by a writ of interim attachment in Form 47.
[Form 47.]
- Attachment under judgment summons to be superseded by payment
(1) In or upon every writ of interim attachment against the property of a judgment debtor, the registrar shall cause to be inserted or endorsed the sum of money upon payment of which the judgment summons will be satisfied.
(2) If the judgment debtor, before the actual sale of the property under any writ of attachment and sale, pays or causes to be paid or tendered to the bailiff holding the writ or to the court which issued the writ, or to the foreign court, if any, the sum of money inserted or endorsed as aforesaid, or such part thereof as the judgment creditor agrees to accept in full satisfaction, the interim attachment shall be superseded and the property of the judgment debtor shall be discharged and set at liberty.
(3) The provisions of sub-paragraphs (a) to (c) of paragraph (2) of rule 18 of
Order IV shall apply where payment is made under this rule.
(4) The court at the hearing of the judgment summons may in its discretion make an order suspending an interim attachment.
- Judgment summons may be superseded on payment
(1) In or upon every judgment summons the registrar shall cause to be inserted or endorsed the sum of money on payment of which the judgment summons will be satisfied.
(2) If the judgment debtor at any time before the making of a final order upon then judgment summons pays or causes to be paid or tendered to the registrar of the court from which the judgment summons issued, or to the bailiff holding the judgment summons, the sum of money inserted or endorsed as aforesaid, or such part thereof as the judgment creditor agrees to accept in full satisfaction, the judgment summons may, if the judge or
magistrate thinks tit, be struck out. - No committal where payment impossible
(1) Upon the issue of a judgment summons, and at any time thereafter before an order or warrant of committal (except a warrant of committal under section 61 of the Act) has been issued, the judgment debtor may file in duplicate a full statement and account of all property of whatever nature belonging to him, whether in expectancy or possession, and whether held exclusively by him or jointly with others, or by others in trust for him, excepting the necessary wearing apparel of himself and his family and the necessary implements of his trade, if any, to the value of ten naira, and of the places respectively
where such property is to be found.
(2) The registrar shall give or send the duplicate statement to the judgment creditor.
(3) If at the hearing of the judgment summons the judgment debtor, upon whom the onus of proof in this regard shall lie, shall satisfy the court that he has made a full surrender and discharge of his property, and that he is unable because of unavoidable misfortune to satisfy the judgment, and that he has not been guilty of any misconduct mentioned in section 66 of the Act, and that he ought not to be imprisoned, the court shall make no order for the commitment of the judgment debtor under section 63 (a) of the Act and shall, if the judgment debtor is in prison, make an order for his discharge under section 63 (d) of the Act:
Provided that, if it shall subsequently be shown to the satisfaction of the court that the judgment debtor has not made a full disclosure, the preceding provisions of this rule shall no longer be applicable.
Where judgment debtor dis putes amount in default
Where, upon the hearing of a judgment summons, the judgment debtor disputes the
amount in payment of which he is alleged to have made default, he may give evidence,
and the judgment creditor and all other witnesses whom the court thinks requisite may be
examined by or on behalf of the judgment debtor and by the court as to what amount, if
any, remains due under the judgment and as to any money or other valuable consideration
which may have been paid or given to the judgment creditor by or on behalf of the judgment debtor in respect of the judgment debt or of any release, compromise, or accord and
satisfaction of the judgment debt, or under any process for the enforcement of the judgment.
- New order after imprisonment
(1) Where a new order for payment of a judgment debt is made there shall be included in the amount payable under that order for the purpose of any proceedings, otherwise than by judgment summons, any amount in respect of which an order of commitment under section 63 or 68 of the Act has been made and the debtor imprisoned, but so
that the debtor shall not be liable to be imprisoned a second time for non-payment of either last-mentioned amount.
(2) No judgment summons under the new order shall include any amount in respect of which the debtor was imprisoned before the new order was made, and any amount paid subsequently to the new order shall be appropriated in the first instance to the amount due under the new order.
(3) Detention under section 58 or 66, or committal under section 61, of the Act, shall not be deemed to be imprisonment for the purposes of this rule.
- When costs not allowed to judgment creditor
(1) On the hearing of a judgment summons, no costs shall be allowed to the judgment creditor unless the court is satisfied that the judgment debtor has had, since the date of the original judgment or order, the means to pay the sum in payment of which he has made default, and a note thereof is entered in the minutes of the proceedings.
(2) When on the hearing of a judgment summons, the court makes a new order for payment of the amount remaining unpaid, the order shall be in Form 19 or Form 20, whichever is applicable.
[Form 19 and 20. Cap. P20. Schedule.] - Application for committal warrant under section 72
(1) When an order enforceable by committal under section 72 of the Act has been made, the registrar shall, if the order was made in the absence of the judgment debtor and is for the delivery of goods without the option of paying their value or is in the nature of an injunction, at the time when the order is drawn up, and in any other case, on the application of the judgment creditor, issue a copy of the order endorsed with a notice in Form 48, and the copy so endorsed shall be served on the judgment debtor in like manner as a judgment summons.
[Form 48.]
(2) If the judgment debtor fails to obey the order the registrar on the application of the judgment creditor shall issue a notice in Form 49 not less than two clear days after service of the endorsed copy of the order, and the notice shall be served on the judgment debtor in like manner as a judgment summons.
[Form 49.]
(3) On the day named in the notice the court, on being satisfied that the judgment
debtor has failed to obey the order and, if the judgment debtor does not appear-
(a) that the notice has been served on him; and
(b) if the order was made in his absence, that the endorsed copy thereof has also
been served on him, may order that he be committed to prison and that a warrant of commitment may issue.
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