SADHURAM RIGHUMAL (APPLICANT)
A. E. ALLAGOA (ATTORNEY FOR THE TRUSTEES OF UTDOMAL AND ASSUDAMAL COMPANY, HONG HONG) (RESPONDENT)
(1961) All N.L.R. 595
Division: High Court (East)
Date of Judgment: 24th July, 1961
Case Number: Suit No. C/6/1960
Before: Idigbe, J.
Motion to set aside Writ of Execution.
The respondent, Judgment creditor, obtained a money Judgment against the applicant, Judgment debtor. Sometime later, the Judgment debtor obtained a court order to discharge the Judgment debt and costs by monthly instalments of £5. There was a default Clause to the effect that upon default by the Judgment debtor to pay any of the instalments, the whole amount of the Judgment debt should accrue due. The Judgment debtor defaulted and the Judgment creditor obtained a Writ of Execution for the full balance of the Judgment against the Judgment debtor and levied it upon the Judgment debtor's movable property. The Judgment debtor brought this application asking the court to set aside the Writ of Execution and to discharge his property therefrom: upon the ground that the writ was wrongfully obtained for the full amount of the balance of the Judgment debt. He lodged with the Motion a sum equal to the total of the instalments then due under the instalment order.
(1) Where a court makes an order for the payment of a Judgment debt by instalments such order operates as a stay of execution of the original Judgment and execution can issue only for the amount of instalments which have become due and unpaid.
(2) Notwithstanding that an order for payment of a Judgment debt by instalments contains a Clause to the effect that the whole amount of the Judgment debt shall accrue due on failure of the Judgment debtor to pay any of the instalments, on such default, the Judgment creditor can levy execution in respect only of the arrears of instalments due under the order, and not in respect of the total balance due on foot of the Judgment.
Cases referred to:-
Nesom v. Metcalfe, (1921) 1 K.B. 400; 90 L.J.K.B. 273; 124 L.T. 606; 37 T.L.R. 111.
Woodham-Smith v. Edwards, (1908) 2 K.B. 899; 71 L.J.K.B. 1056; 99 L.T. 710; 24 T.L.R. 864; 52 Sol. Jo. 680.
Kwabena Oduro of Nsawam v. Francis Davis of Adiese, 14 W.A.C.A. 46.
In Re Mitchell: Ex Parte Cohen (1910) W.N. 24; 50 Sol. Jo. 252.
Acts and Ordinances referred to:-
Sheriffs and Civil Process Ordinance, Cap. 189 secs. 21, 22(2).
Debtors Act, 1869 (32 and 33 Vict. c.52) section 5.
Execution Act, 1844 (7 and 8 Vict. c.96) section 61.
Order and Rule referred to:
Civil Procedure Rules (Gold Coast) Order 43, rule 6.
MOTION to set aside Writ of Execution.
Okon for the Applicant.
Koofreh for the Respondent.
Idigbe, J.:-This is an application by the defendant/Judgment debtor for an order of Court that the writ of attachment sued out by the plaintiff be superseded and the property of the defendant be discharged and set at liberty and for such order or orders as the court may deem fit. The plaintiff, the Judgment Creditor in this case sued the defendant, the Judgment Debtor for a debt of £1,603-4s-2d and on the 2nd of August, 1960 Judgment was entered by the court for the plaintiff in the sum of £1,603-4s-2d and 60 guineas costs. Upon an application by the defendant, the Judgment Debtor, Egbuna Ag. J. on the 24th of January, 1961, ordered that the Judgment debtor may discharge the Judgment debt and costs by monthly payments of £5 starting from 1st February, 1961 and on the seventh day of each subsequent month. There was a default Clause to the effect that upon default the whole amount will accrue.
The Judgment debtor has defaulted; and indeed up to the time when the Judgment creditor took out a writ for the attachment of the debtor's movable property in order to satisfy the debt, no payment under the order was made. The Creditor's present application for a writ of fieri facias was filed on the 1st day of May, 1961 when the writ was also issued for the recovery of £1,666-4s-2d (the entire Judgment debt and costs), and costs of application. On the 4th of May, 1961 the Judgment debtor filed his motion in which he prays for an order of Court as above.
Mr Koofreh for the Judgment creditor has opposed the application. Before the hearing of the application, the entire amount up to date, which is due under the order of Court for payment by monthly instalments together with the cost of application for the writ was deposited with the Registrar by the Judgment debtor.
Mr Okon now argues that the entire amount due to date under the Order for payment by instalments having been paid into Court, execution ought not to issue for the entire balance of the Judgment debt and costs (i.e., the balance of the amount due on the original Judgment and costs), in spite of the default Clause in the order of the 24th day of January, 1961. In support of his contention he cites section 22(2) of the Sheriffs and Civil Process Ordinance, Cap. 189. (1958 Laws of the Federation of Nigeria and Lagos.)
The order of Court made on the 24th of January, 1961 undoubtedly operates as a stay of execution of the original Judgment, but to that Order was attached a default Clause which provides that the entire amount shall become due upon default by the Judgment debtor in payment of any one instalment. The question then arises as to whether pursuant to the order of 24th January, 1961 execution may issue as to the entire balance due on the Judgment debt and costs.
In Nelson v. Metcalfe (1921) 1 K.B.400 it was held that where a Judgment has been recovered in the High Court
for a sum of money and an Order is after-wards made in the County Court under section 5 of the Debtors Act, 1869, for payment or the Judgment debt by instalments, the Instalment Order, and not the Original Judgment, is the governing Order for the purpose of the jurisdiction of the court to commit the debtor for non-payment of any of the instalments. Continuing his Judgment in the above case at 407, MacCardie J. observed as follows:-
In Montgomery & Co. v. De Blumes (1898) 2 Q.B. 420, it was held that after an instalment order has been made execution cannot be issued upon the original Judgment; and Woodham-Smith v. Edwards, (1908) 2 K.B. 899, decided that after an instalment order is made execution can only issue for the amount of instalments which have become due and unpaid.
It is true that in Nesom's case and in the case of Woodham-Smith the Court of Appeal was considering the powers of Committal under section 5 of the Debtors' Act, 1869, where an order for instalment payment of a Judgment debt has been made, section 61 of the Execution Act, 1844, (7 and 8 Victoria c.96) gives similar power to the High Court in England to make an order for instalment payment, and the principle above stated was considered to be the same in regard to powers of the court under the Execution Act, 1844, in Woodham-Smith v. Edwards-see Fletcher Moulton L.J. at 904.
Section 61 of the Execution Act, 1844, was considered by the West African Court of Appeal to be substantially the same with Order 43, rule 6, of the Gold Coast Civil Procedure Rules-see Kwabena Oduro of Nsawam v. Francis Davis of Adeise 14 W.A.C.A. 46 at 47. That section of the Gold Coast Civil Procedure Rules is in effect the same as section 21(1) and 21(2) of our Sheriffs and Civil Process Ordinance, Cap. 189, referred to above.
In Re-Mitchell, Ex parte Cohen, (1910) W.N. 24, one Eden, on November 1907, obtained a Judgment against Mitchell for £231-6s-8d and on November 28th 1908. Bingham J., on a Judgment summons issued by Eden against Mitchell, made an order for payment of the Judgment debt by instalments. The first two instalments only had been paid when subsequently section Cohen purchased the Judgment debt from Eden and it was duly assigned to him. Subsequently Cohen, was by an order of Court substituted as plaintiff in the action in place of Eden. Eleven instalments due under the order of November 28th 1908, being in arrear, Cohen applied that the order might be discharged on the ground that Mitchell has not complied with the terms thereof. On being served with Cohen's application, Mitchell tendered the total amount due in cash, in payment of the arrears of the instalments, but the tender was refused. There was no evidence that Mitchell had means to pay. Phillimore J. allowed the application and the creditor was given liberty to recover the entire balance by levy of execution or by proceedings in bankruptcy.
It seems to me therefore that notwithstanding the default Clause in the Order of Egbuna Ag. J., made on the 24th January, 1961, execution can only levy in respect of the arrears of instalment due under that order. But the Judgment creditor has the option to accept the amount when a tender thereof has been made. In this case the entire amount of arrears due under the order has not been tendered merely, but has actually been paid into Court. The Judgment Creditor can only levy execution when in future another default occurs and even then, if he seeks to levy execution in respect of the entire balance and not only in respect of the arrears then due, he must make an application to that end in court.
Accordingly I will grant the prayer of the applicant. Ordered as prayed. I will make no order as to costs.