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

LawGlobal-Hub Lead Judgment Report

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 Okpaise, who was one of the defendants, died and the action against her was struck out, after it had been withdrawn by the plaintiff.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;

(v) she had responsibility for an aged mother;

(vi) she had other debts to liquidate.

The second defendant/respondent’s case was that-

(i) she had an income of N70 a month as a customary court president; and

(ii) she had other debts to liquidate.

Though she admitted owning some trinkets and clothes, the second defendant/respondent said in her oral evidence before the learned Judge that these trinkets and clothes would not value up to £3000 (N6000).

The question is whether the learned Judge, on the facts before him, and in the circumstances of the case, could be said to have exercised his discretion properly in granting the stay of execution of the judgment and ordering instalmental payment of the judgment debt to span over a period of twenty six years? In a proper exercise of his discretion under the rules, the order must have been made for a “sufficient reason”.

The defendants/respondents incurred an overdraft of N6160 from the appellant for purpose of their business. Now under the order made by the learned Judge, they will take about twenty six years to repay the loan, because according to them, they have other financial responsibilities including responsibility by one of them to assist in the education of her children in Universities and other relations in secondary schools. We would like to impress on trial courts to take every care not to frustrate their own judgment by making orders of such instalmental payments of judgment debts as would amount to taking away from the judgment creditor the very judgment that the courts has awarded him.

We think that any situation where a judgment debtor is allowed to take twenty six years to repay a judgment debt of N6000, which debt was incurred for the purpose of a business transaction, would definitely amount to frustrating the judgment the learned trials Judge has awarded the plaintiff. We cannot conceive as sufficient any reason that would grant an order permitting a judgment debtor, in the circumstances of this case, to take over a whole generation to repay a judgment debt of only N600.00.

To our mind the only reasonable course the learned Judge should have taken in this case, was to have left the judgment creditor to its remedy. This appeal therefore succeeds and it is allowed. The orders of stay of execution and instalmental payments made by Obaseki, J., in Suit No. 11/41/72, on 9th August, 1972, are hereby set aside. In their place we make an order dismissing the application of the defendants/respondents.

The applicants are awarded the costs of this appeal assessed at N142 and costs in the High Court assessed at N25. (Sgd.)

Other Citation: (1978) LCN/2116(SC)