A.c.b. Ltd Vs A. Ehiemua (1978)

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ESO, JSC.

The defendants, who are the respondents in this court, had in the Mid-Western State (now Bendel) High Court, before Obaseki, J., (as he then was), sitting at Benin City, pleaded liable to a claim of £3,079:19:10 (N6,160) by the plaintiff (appellant in this court), being overdraft granted to them by the plaintiff/appellant. PAGE| 2 Originally, there were three defendants.

Mrs. Okpaise, who was one of the defendants, died and the action against her was struck out, after it had been withdrawn by the plaintiff. The court then gave judgment against the present two defendants/respondents for the amount claimed. Thereafter, the defendants/respondents filed an application to pay the judgment debt by instalments of £10 (N20) per month that is each of them was to pay N10 per month.

The learned trial Judge, having considered the affidavits filed by the defendants/respondents, the counter affidavit filed on behalf of the plaintiff/appellant and the evidence of one of the defendants/respondents, Mrs. Bernice Kerry, stayed the execution of the judgment “so long as the defendants pay the judgment debt and costs by instalments at the rate of £10 (N20) per month.”The plaintiff, who is dissatisfied with this decision, has now appealed to this court on the following grounds –

“1. The learned Judge erred in law by granting an order of instalmental payment when the applicants who were bound by the Partnership Law (Cap 26) failed to show sufficient reason for the order sought.

2. The learned Judge misdirected himself by not considering –

(a) all the assets available to the judgment debtors for the payment of the judgment debt and/or

(b) the convenience of the judgment creditor before making the order.”

Before us, the respondents were neither present nor represented by counsel. However, Mr. Sadoh, learned counsel for the appellant, urged on us to allow the appeal and leave the plaintiff/appellant to its remedy. Under the Order made by the learned Judge, learned counsel submitted, it would take about 26 years to liquidate the debt. Now the rule under which the order for instalmental payment was made is Order 29 rule 8 of the High Court (Civil Procedure) Rules 1958, made under the High Court Law (Cap 44) Laws of Western Region of Nigeria 1959 and applicable in the Mid West State (now Bendel State). It provides- “when any judgment or order directs the payment of money, the court may, for any sufficient reason, order that the amount shall be paid by instalments, with or without interest. Such order may be made at the time of giving judgment, or at any time afterwards, and may be rescinded upon sufficient cause at any time.”

What are the reasons for the order for instalmental payment in this case? The first defendant/respondent deposed to an affidavit that –

(i) the construction firm in respect of which the overdraft was incurred had became defunct since 1967;

(ii) she was a petty contractor and after the civil war her income was not more than N60 a month on the average;

(iii) she had moral responsibility to help her husband, a retired civil servant, in the education of their children, one in Hill University and the other in Ahmadu Bello University Zaria;

(iv) she had responsibility for two other relations who were orphans, one in a secondary school and the other in a primary school;