SADHURAM RIGHUMAL v A. E. ALLAGOA (Suit No. C/6/1960) [1961] NGHC 22 (24 July 1961)

**SADHURAM** **R****IGHUMAL** **(APPLICANT)** **_v_.** **A.** **E****.** **ALL****AGOA** **(A****TTORNEY** **FOR** **TH****E** **T****RUSTEES** **OF** **UTDOM****AL** **AN****D** **AS****SUDAMAL** **COMPANY,** **HON****G** **H****ONG)** **(RESPONDENT)** **(1961)** **All** **N.L.R.** **595** **Div****i****si****o****n:** High Court (East) **D****at****e** **o****f** **Judgment:** 24th July, 1961 **C****as****e** **Num****b****er:** 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. **_HELD_**** _:_** (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. _M_ _o_ _t_ _i_ _o_ _n_ _g_ _ra_ _n_ _t_ _e_ _d_ _._ _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _Ne_ _s_ _o_ _m_ _v_ _._ _Me_ _t_ _c_ _a_ _lf_ _e_ _,_ (1921) 1 K.B. 400; 90 L.J.K.B. 273; 124 L.T. 606; 37 T.L.R. 111. _Woodham-Smith_ _v_ _._ _E_ _dwards_ , (1908) 2 K.B. 899; 71 L.J.K.B. 1056; 99 L.T. 710; 24 T.L.R. 864; 52 Sol. Jo. 680. _Kwab_ _e_ _n_ _a_ _Od_ _u_ _r_ _o_ _o_ _f_ _N_ _saw_ _a_ _m_ _v_ _._ _F_ _r_ _anci_ _s_ _Davi_ _s_ _o_ _f_ _Ad_ _i_ _ese_ _,_ 14 W.A.C.A. 46. _I_ _n_ _R_ _e_ _Mi_ _t_ _che_ _l_ _l_ _:_ _E_ _x_ _Pa_ _r_ _t_ _e_ _Co_ _h_ _e_ _n_ (1910) W.N. 24; 50 Sol. Jo. 252. _Ac_ _t_ _s_ _a_ _n_ _d_ _O_ _r_ _d_ _in_ _a_ _n_ _c_ _e_ _s_ _re_ _f_ _e_ _r_ _re_ _d_ _t_ _o_ _:__-_ _Sh_ _e_ _ri_ _f_ _f_ _s_ _a_ _n_ _d_ _Ci_ _v_ _i_ _l_ _P_ _ro_ _c_ _e_ _s_ _s_ _O_ _r_ _di_ _n_ _an_ _c_ _e_ _,_ Cap. 189 secs. 21, 22(2). _Deb_ _t_ _or_ _s_ _A_ _ct_ _,_ 1869 (32 and 33 Vict. c.52) section 5. _Execution_ _Act,_ 1844 (7 and 8 Vict. c.96) section 61. _O_ _r_ _d_ _e_ _r_ _an_ _d_ _R_ _u_ _l_ _e_ _r_ _e_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:_ _C_ _ivi_ _l_ _Proce_ _d_ _ur_ _e_ _Rule_ _s_ (_Gol_ _d_ _C_ _o_ _as_ _t_) Order 43, rule 6. MOTION to set aside Writ of Execution. _O_ _ko_ _n_ for the Applicant. _Koo_ _f_ _re_ _h_ 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 £1,603-4 _s-_ 2 _d_ and on the 2nd of August, 1960 Judgment was entered by the court for the plaintiff in the sum of £1,603-_4s_ -2 _d_ 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 £1,666-4 _s-_ 2 _d_ (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:- _I_ _n_ _M_ _o_ _ntg_ _o_ _me_ _r_ _y_ _&_ _C_ _o_ _._ _v_ _._ _D_ _e_ _Bl_ _u_ _me_ _s_ (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. _I_ _n_ _R_ _e_ _-__M_ _i_ _t_ _c_ _h_ _e_ _l_ _l_ _,_ _E_ _x_ _pa_ _r_ _t_ _e_ _C_ _o_ _h_ _e_ _n_ _,_ (1910) _W.N._ 24, one Eden, on November 1907, obtained a Judgment against Mitchell for £231-6 _s-_ 8 _d_ 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. _M_ _o_ _t_ _i_ _o_ _n_ _g_ _ra_ _n_ _t_ _e_ _d_ _._