SOLOMAN OZUDGULU v LOUISA NWACHUKWU (Suit No. LD/50a/1963) [1963] NGHC 4 (22 August 1963)

**SOL****O****MA****N** **O****Z****UD****G****UL****U** **(****A****PPE****L****LA****N****T****)** **_v._** **LO****U****I****S****A** **N****W****A****C****H****U****KW****U** **(****R****E****S****PO****N****D****E****NT****)** **(1963)** **All** **N.L.R.** **596** **Div****i****si****o****n:** High Court of Lagos **D****at****e** **o****f** **Judgment:** 22nd August, 1963 **C****as****e** **Num****b****er:**(Suit No. LD/50a/1963) **Before:** De Lestang, C.J. Appeal from magistrate's court. Judgment was given against the appellant in an action in the magistrate's court for damages for slander and he was ordered to pay £45 damages to the respondent. He applied to the trial Court under Order XVIII, rule 7(2) of the Magistrates' (Civil Procedure) Rules for payment by instalments and for a stay of execution. The trial Magistrate dismissed the application on the ground that Order XVIII, rule 7(2) and 8(2) of the Magistrates' Court (Civil Procedure) Rules was subject to the provisions of the Sheriffs and Civil Process Act, the combined effect of sections 23 and 66 whereof prohibited the court from allowing payment by instalments and granting a stay of execution where, _inter_ _alia_ , the judgment is one for slander. The appellant appealed to the High Court on the ground that the application was governed solely by Order XVIII, rule 7(2) and 8(2) of the Magistrates' Court (Civil Procedure) Rules and that the provision of the Sheriffs and Civil Process Act did not apply. **_HELD_**** _:_** (1) Under Order XVIII, rule 7(2) and rule 8(2) a magistrate's court is empowered _in_ _every_ _case_ to order payment by instalment and/or to suspend execution when the court is satisfied that the judgment debtor is unable to pay from any cause. (2) The Sheriff and Civil Process Act is an act of general application; its provisions for instalments and stay of execution apply when there are no specific provisions elsewhere; the Magistrates' Courts Rules contain provisions dealing specifically with payments by instalments and stay of execution; in the present case, the application of the provisions of the Sheriffs and Civil Process Act, was therefore wrong. (3) The reference to the Sheriffs and Civil Process Act in Order XVIII, rule 8(1) of the Magistrates' Court (Civil Procedure) Rules does not make that rule subject to that Act; rule 8(1) merely relates to the issue of execution. _Ap_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _ed_ _:_ _D_ _e_ _c_ _i_ _s_ _i_ _o_ _n_ _o_ _f_ _t_ _r_ _ai_ _l_ _C_ _o_ _u_ _r_ _t_ _s_ _e_ _t_ _a_ _s_ _i_ _d_ _e_ _:_ _C_ _a_ _s_ _e_ _se_ _n_ _t_ _b_ _a_ _c_ _k_ _t_ _o_ _t_ _r_ _a_ _i_ _l_ _C_ _o_ _u_ _r_ _t_ _t_ _o_ _d_ _ec_ _i_ _d_ _e_ _a_ _p_ _p_ _l_ _i_ _c_ _at_ _i_ _o_ _n_ _o_ _n_ _i_ _t_ _s_ _m_ _e_ _r_ _i_ _t_ _s_ _._ _A_ _c_ _t_ _r_ _e_ _f_ _er_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Sheriffs_ _an_ _d_ _Civi_ _l_ _Proce_ _ss_ , Act, sections 23 and 66. _O_ _rder_ _s_ _a_ _n_ _d_ _Rul_ _e_ _s_ _refe_ _r_ _re_ _d_ _to)__:__-_ _Ma_ _g_ _i_ _s_ _tr_ _a_ _t_ _e_ _'__s_ _Co_ _u_ _r_ _t_ _(__C_ _iv_ _i_ _l_ _P_ _ro_ _c_ _e_ _d_ _u_ _r_ _e_ _)_ _R_ _u_ _l_ _e_ _s_ _,_ Order XVIII, rule 7(2), 8(1) and (2). APPEAL from Magistrate's Court. _Dik_ _e_ for the Appellant. _Akinyed_ _e_ for the Respondent. De Lestang, C.J.:-Judgment having been given against the appellant in the Magistrate's Court, Yaba, in an action for damages for slander wherein he was ordered to pay the respondent £45 damages with 10 guineas costs, he applied to the court under Order XVIII, rule 7(2) for payment by instalments and for a stay of execution. The learned Magistrate dismissed the application on the ground that Order XVIII, rules 7(2) and 8(2) of the Magistrate's Court (Civil Procedure) Rules was subject to the provisions of the Sheriffs and Civil Process Act, the combined effect of sections 23 and 66 whereof prohibits the court from allowing payment by instalments and granting a stay of execution where _inter_ _alia_ the judgment is one or slander. The appellant appeals on the ground that the application is governed solely by Order XVIII, rules 7(2) and 8(2) and that the provision of the Sheriffs and Civil Process Act do not apply. In my view the appellant's contention is sound. It cannot be doubted that the two rules mentioned empower the magistrate's court in every case to order payment by instalment and/or to suspend execution when the court is satisfied that the judgment debtor is unable to pay from any cause. The learned Magistrate appreciated this but thought that the reference in Rule 8(1) to the Sheriffs and Civil Process Act subjected the rule to that Act. In my view it does nothing to the kind. Rule 8(1) reads:- "The issue of any execution in any proceedings shall be in accordance with the provisions of the Sheriff and Civil Process Act." Rule 8(2) then follows and empowers a stay without limitation. It will be observed that rule 8(1) merely relates to the issue of execution. It cannot therefore bring in the provisions of the Sheriffs and Civil Process Act which deal with instalments or stay. The former is dealt with in rule 7(2) and the latter in rule 8(2), both specifically. The Sheriffs and Civil Process Act is an Act of general application. Its provisions for instalments and stay of execution apply when there are no specific provisions elsewhere. The Magistrates' Court Rules contain provisions dealing specifically with payment by instalments and stay of execution of judgment obtained in the Magistrates' Courts. These are more favourable to a debtor than those in the Act and I can see no good reason why they should not apply fully. In my view the learned Magistrate erred in applying the provisions of the Sheriffs and Civil Process Act and his decision must be set aside together with the order for costs. The case will go back to the learned Magistrate to decide the application on its merits in light of this decision. The appellant will have the cost of this appeal assessed at £10-10s. _Ap_ _p_ _e_ _a_ _l_ _a_ _l_ _l_ _o_ _w_ _ed_ _:_ _D_ _e_ _c_ _i_ _s_ _i_ _o_ _n_ _o_ _f_ _t_ _r_ _ia_ _l_ _C_ _o_ _u_ _r_ _t_ _s_ _e_ _t_ _a_ _s_ _i_ _d_ _e_ _:_ _C_ _a_ _s_ _e_ _se_ _n_ _t_ _b_ _a_ _c_ _k_ _t_ _o_ _t_ _r_ _i_ _a_ _l_ _C_ _o_ _u_ _r_ _t_ _t_ _o_ _d_ _ec_ _i_ _d_ _e_ _a_ _p_ _p_ _l_ _i_ _c_ _at_ _i_ _o_ _n_ _o_ _n_ _i_ _t_ _s_ _m_ _e_ _r_ _i_ _t_ _s_