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10TH DAY OF MAY, 1991

3PLR/1991/17  (CA)










G.N. Nwosu – For the Appellant

Ugochukwu Ogakwu ‑ For the Respondent



APPEAL – Stay of Execution – Instalmental payments ‑ Applicable principles

LIMITATION OF ACTION ‑ Effect on pending litigation.

JUDGMENT AND ORDER ‑ Regularity of Courts judgment ‑ Duty of court to protect its judgment.

COURT ‑ Exercise of discretion ‑ Principles guiding court.

PRACTICE AND PROCEDURE ‑ Exercise of discretion ‑ Principles guiding court.

WORDS AND PHRASE ‑ “Judicial” and “Judicious” Meanings and distinction’



NIKI TOBI, J.C.A. (Delivering the Leading Judgment):

The respondent opened a current account at the appellant’s 148, Zik Avenue, Uwani branch, Enugu. The account number was 0488. The respondent applied for an overdraft/loan of N60,000.00. The appellant granted it. The account was overdrawn by the respondent by amount far in excess of his lodgments into the account. The appellant charged the respondent interests calculated at various rates attracted by the overdrawn account.


Periodical accounts were sent to the respondent which at the material time were always in debit balance. The appellant by letters demanded for the debt. The respondent could not pay the entire debt. The appellant therefore sued.


Onyechi, 3., gave judgment to the appellant in the sum of N120,512.43. As it is, the said sum included the interests over the period. The respondent was dissatisfied with the judgment. He appealed to this court. He lost. His appeal was dismissed on 15th December, 1989.


In his leading judgment, Nasir, P.C.A. coram Ogundare and Achike, JJ.C.A., said inter alia


“It seems to me that the real worry of the Appellant was that having obtained an overdraft of N60,000 in 1976 and even though he had refunded N30,000 he must still pay to the Respondents N 120,512.43 with F interest. Unfortunately that is what the position is. There is nothing any court can do at a trial or appeal to change it unless evidence is available to support any interference.


In conclusion this appeal fails completely and it is hereby dismissed. The judgment and orders made by the learned trial judge are hereby affirmed.”


The respondent brought an application before the lower court for stay of execution and instalmental payment of N500.0O per month. The application came before Ononiba, 3. Before the motion was heard, the respondent paid the sum of N10,000.00. After an examination of the affidavit evidence, the learned trial Judge ordered the respondent to pay the sum of N 1,500.00 monthly in liquidation of the debt. The monthly payment was to commence from April, 1990. This is part of what the learned trial Judge said:


“From the applicant’s declaration of income of between N2000.00 to N2,500.00 per month, I have no reason to believe he has not made full disclosures of his assets and liabilities…. Taking everything into consideration and balancing the need not to deprive the plaintiff/respondent of the fruits of his judgment against the circumstances of the applicant together with present economic dilemma of the country, the amount of instalmental payment per month must be substantially increased from the offer of N500.00 per month to Ni,500.00”


Dissatisfied with the ruling, the appellant has appealed to this court. Three grounds of appeal were filed. For convenience, I shall state hereunder the ipsissima verba of the grounds only without the particulars:


“(1)   The learned trial Judge misdirected himself on the fact before him and so came to a wrong conclusion by ordering the liquidation of a judgment debt of over N110,000.00 entered in May, 1984 by payment of monthly instalments of Ni,500.00 thereby spanning the payment over a period of over 13 years after judgment. Without taking into consideration the injustice the long span would cause to the plaintiff.


(2)     The learned that Judge erred in law in failing to consider the injustice the plaintiff would suffer to allow the defendant to liquidate a judgment debt of over Ni 10,000.00 within a period of over 13 years.


(3)     The learned that Judge erred in law by taking into consideration facts not before him and failed to consider facts which were before him .”


Briefs were filed and duly exchanged. As a matter of fact, the respondent brought a motion on 11th February 1991 for extension of time within which Lo file his brief. He had already filed the brief. There being no objection from the appellant, we granted the motion. The following two issues were formulated by counsel for the appellant for determination:


“(1)   Was it proper for the High Court to base its Ruling only on the averments which support the application without also taking into consideration those which oppose it?

(2)     What will be the attitude of a court wherein a motion for instalmental payment, a material averment is made by a party against the other and that other party fails to traverse it?


On the other hand, learned counsel for the respondent formulated the following issue for determination:


“From the affidavit evidence was the trial Judge justified in granting the application for instalmental payment?.”


I prefer the formulation of learned counsel for the respondent. It is precise and to the point. As a matter of fact and law, the appeal zeros on that main issue. And this is the truth.


In arguing the appeal, learned counsel for the appellant, Mr. G. N. Nwosu submitted that the trial court did not in his ruling consider the averments in paragraphs 6,7,8 and 11 of the counter affidavit of the appellant. To counsel, if the court had addressed itself to those averments, the court would have seen the injustice granting the application would cause the appellant. Contending that the discretion was biased in favour of the respondent, counsel relied on the case of Okafor v. Nnaife (1987) 4 NWLR (Pt. 64) 129 at 136. It was also the contention of counsel that to allow the respondent to pay the judgment debt for a period of 13 years would offend the Supreme Court decision in A.C.B. Ltd v. Mrs. Ehiemua & Another (1978)2 SC 73 at 76. To counsel, the amount of N1,500.00 was arrived at arbitrarily. Relying on Order 4 Rule 8 of the Sheriffs and Civil Process Judgments (Enforcement) Rules, Cap I i8,Laws of Eastern Nigeria, 1963,counsel submitted with some force that after 22nd May, 1990, the judgment cannot be A enforced as it will be statute barred. Dealing with the findings of learned that Judge on the properties of the respondent, counsel submitted that the findings were not borne Out from the affidavit evidence before the court. Counsel specifically claimed that the land indicated in Exhibit D4 of the further affidavit of the respondent refers to another land and not in anyway referable to Exhibits R2, R3 andR4.


Learned counsel for the respondent, Mr. Ugochukwu Ogakwu in his brief of argument, submitted that the application in the lower court, being one for instalmental payment is a discretionary remedy and in the exercise of this discretion a court acts not only judicially but also judiciously and based on the materials presented to the court. Recalling the affidavit evidence before the lower court, counsel submitted that the learned that Judge exercised his discretion not c only judicially but judiciously. To counsel, the submission of Mr. Nwosu that the learned trial Judge took into consideration facts not before him and that the amount of N1,500.00 was arbitrarily fixed, was unfounded. He sought refuge in the affidavit evidence of the respondent.


Arguing that an appeal court does not interfere in the exercise of judicial discretion once it is shown that the discretion was exercised judicially and judiciously on sufficient materials, learned counsel called the attention of the court to University of Lagos v. Aigoro (1985)1 NWLR (Pt. 1)143 at 148; Enekebe v. Enekebe (1964)1 All NLR 102 at 106. Demuren v. Asuni (1967) 1 All NLR 94 at 101, Haruna v. Ladeinde (1987) 4 NWLR (P167) 941 and Adene v. Dantumbu (1988) 4 NWLR (Pt. 88) 309.

Replying to the submission of learned counsel for the appellant on Exhibit D4 vis‑a‑vis Exhibits R2, R3 and R4, counsel submitted that the land in Exhibit D4 is referable to Exhibits R2, R3 and R4.


Although the matter before this court is a two‑pronged affair, it appears to me that the first remedy materially dovetails into the second, if not completely assimilated by it. Although the application before the lower court was for stay of execution and instalmental payment, the first remedy does not carry with it, the more usual concomitant effect in our adjectival law of staying the execution of the judgment of the lower court with a view to testing the decision of the Court on appeal. Rather, it is an application to stay a possible execution of the judgment debt, most probably by a writ of fifa to enable the respondent pay the judgment debt by convenient instalments.


Both counsel agree that the application vests some discretionary power in the court. It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously. See Ekwunife v. Wayne (WA) Ltd. (1989) 5 NWLR (P1 122) 422; Ibenwelu v. L.awal (1971) 1 All NLR 23.


The exercise of the court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and

tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.


But, discretion is discretion, whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the court according to law and good judgment. Discretion is not discretion if its exercise is based on the court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment, as the case may be.


On the principles of exercising discretion by the court, see generally University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156 at 175. Williams v. Williams (1987) 2 NWLR (PL54) 66; Agbolohun v. Balogun (1990) 2 NWLR (Pt134) 576.


The law is commonplace that the whole essence of litigation is to ensure that the successful party enjoys the benefit and pleasures of the judgment and the losing party the deprivations and pains of his loss. Accordingly, it is the duty of the courts (trial and appellate) to ensure that a successful litigant reaps the fruits of the litigation without any hinderance or obstacle so that he does not return home from the court with a barren or fruitless victory. See Olayemi Lijadu v. Mary Lijadu (1991) 1 NWLR (Pt. 169) 627; Cole v. Adewusi(1977) N.C.A.R. 104; El‑K hahil v. Oredein(1985) 3 NWLR (Pt.12) 371;Deduwa v. Okorodudu (1974)6 S.C.21; Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621.

There is the presumption of regularity of judgment of a competent court of law and unless otherwise proved, a court is bound to protect the terms of its own judgment, come what may, rain or sunshine, good or bad. Therefore a court of law has no right to ridicule its own judgment to the pain of the party in victory and to the pleasure of the party who fails. That is not justice. That is justice inverted and reversed.


While the whole essence of ordering instalmental payment of a judgment debt is to assist the judgment debtor, the amount fixed should be such that will not inflict so much financial pain on the judgment creditor. In these days of global recession, punctuated with the biting economy, arising from the daily racing inflation, the judgment debtor usually wins the sympathy of the court, but the sympathy should not be carried to a ridiculous extent, to make nonsense of the judgment of the court. In A.C.B. v Mrs. Ehiemua and Another(1978) 2 SC 73 at 76, the Supreme Court rightly made the point:


“We would like to impress on trial courts to lake 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 court has awarded him”.


And so, in an application for instalmental payment, a court of law is involved in the delicate balancing of two opposing interests in its search for a convenient amount payable by the judgment debtor to the judgment creditor. In the exercise of balancing the interests of the parties, the court should take into serious consideration the ability of the judgment debtor to pay the Judgment debt, taking into account the state of his domestic finances vis‑a‑vis his domestic commitments. But in doing s, a court should not allow itself to be carried away by every item of domestic expenditure averred to by the judgment debtor, particularly in a situation where the averment is denied by the judgment creditor. I can still go further to make the point that even where there is no dispute as to the state of the judgment debtor’s domestic spending vis-à-vis his domestic income, a court of law has the right not to recognise particular expenditure or expenditures in its exercise of calculating the monthly or yearly payments. Certainly this is not one of such instances where the law should presume that a fact not disputed in a counter affidavit will be deemed to have been admitted and so admitted by a court of law. See Akinsete v. Akindutire (1966) All NLR 147; Eboh and Another v. Oki and others (1974) 1 SC 179; Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt.67) 787; Ejide v. Ogunyemi B (1990) 3 NWLR (Pt. 141)758. But where the judgment creditor is agreeable to the proposed instalmental payment of the judgment debtor, then the court can give judgment on the amount. After all the parties have hot joined issues and the court has no competence to instigate them to join issues. The matter happily ends there. But that is not the situation here. The parties are very much at each other’s throat and we are invited to save their throats from being harmed.

In determining the strengths of averments of domestic spendings by a judgment debtor, the court should be able to distinguish between necessities and luxuries.

If an item of expenditure is a necessity in the sense that its absence in the family is likely to adversely affect the domestic welfare of the family, a court of law must take into consideration such an expenditure in calculating the amount payable. But on the contrary, if the item of expenditure is a luxury, in the sense that the family can have some minimum comfort outside that item, a court of law is entitled to ignore it in calculating the amount payable. After all, it will be an abnormal situation for a debtor to live a life of affluence, while the creditor is living in penury. There is no equity in that type of situation. There is no hard or stringent dividing line between the two and a court of law should allow itself to be persuaded by the peculiar facts of each case. I think I can stop here on that issue, but not before I make the point that the court must be guided by the interest of the parties, applying the usual generic and vague, though inevitable overall interest of justice test.


I should pause here to take the issue raised by learned counsel for the appellant that the action would be statute barred by the 22nd May, 1990, or should I say it became statute barred by that date? He relied on Order 4 Rule 8 of the Sheriffs and Civil Process Judgments (Enforcement) Rules, cap. 118, Laws of

Eastern Nigeria, 1963, applicable to Anambra State. Rule 8 is in two limbs.

By the first limb, (Rule 8 (1)) the limitation period is put between two and six years, depending upon the party the process is issued against. Rule 8(2) is the second limb. It is not as stringent and as tight as rule 8(1). By the rule, a party can still enforce a process outside the statutory period with leave of court. And the rule provides clearly that notice need not be given to the judgment debtor when the leave of the court is sought.


That is the position of the law. Apart from that specific provision, I can fall back on the general state of the law and it is this. Generally, time does not run in the eyes of the law when a litigation in a matter continues and has not abated or come to an end. In the context of this case, (if I may say so naively restrict myself) time can only start to run in relation to Order 4, Rule 8(1) after the legal processes in this matter, up to the Supreme Court, if any of the parties so wish. And by the time, they reach the end of the litigation the party in victory will urge the court to invoke the provision of Rule 8(2). I have the strong feeling that a court of law will be in no difficulty in extending time. That is my humble understanding of the general position of the law and in particular Order 4, Rule 8 (2). It should not be otherwise, or better still, it cannot be otherwise. On a lighter note, why did counsel for appellant argue this appeal before us when he believes that the action became statute barred some nine months ago? Certainly, a court of law, like nature does not act in vain. But that is by the way. I have stated the correct legal position.


Let me take briefly Exhibit 4 and the argument surrounding it. Both counsel pitched their camps on it. It also appears to me that both counsel, particularly counsel for the respondent made a great play of it. In the light of what happened later in the case which I will deal with anon I will not take up time to go into the strict merits of the exhibit, as to whether the land mentioned therein is referable to Exhibits R2, R3 and R4. But I would only like to touch the adjectival aspect raised by both counsel And it is this. Both counsel, and in particular, counsel for the respondent treated us to some geography lesson on the exhibit. Since my geography was very poor at school I did not quite follow the lesson, a’fortiori enjoy it. If I may recall, Exhibit D is the Anambra State of Nigeria Official Gazette No. 30, Volume 4 of 15th November, 1979. Respondent relied particularly on page 527, Notice No.421. The geography lesson was in respect of Local Government Areas in the restricted context of Exhibit D. The dispute had to do with the geography of Nkanu Local Government Area ,vis‑a‑vis Nike and Emene, in relation to the land named therein. Since it is not the intention of section 73 of the Evidence Act to take judicial notice of the very obscure issue, this court cannot pursue the issue further. See generally Adetipe v. Amodu and Another(1969)NMLR 62; Benson v. Ashiru (1967) 1 All NLR 184;(1967) NMLR 363, Onibudo v. Akibu (1982) 7 SC 60; Oyelowo v. Oyelowo (1987) 2 NWLR (Pt. 56) 239.


A very fundamental issue in this matter is the concession made by both counsel on instalmental payments. Learned counsel for the appellant relaxed his ground during his oral submission in court that the appellant would be prepared to accept the liquidation of the balance by instalmental payments. That was some beautiful progress in the apparent stalemate. By this concession, both counsel are ad idem on the issue of instalmental payment. But they parted ways in respect of the amount payable. While learned counsel for the appellant suggested the sum of N40,000.00 per annum instalmental payment, learned counsel for the respondent offered to pay N25,000.00 annually. He also undertook to make a down payment of N10,000.00 by the end of February, 1991.


Before I take a decision on the above, I would like to examine briefly the issue on the arbitrariness of the award of the learned trial Judge. Counsel in his brief of argument challenged the learned trial Judge’s award of N1 ,500.00 per month on the ground that it was arbitrary. Perhaps he thinks the figure is just clutched from the air. Learned counsel for the respondent, as expected, defended the award. To him, it was borne out from the affidavit evidence before the court. Both of them could be right or they could be wrong, or one of them could be right and the other wrong. That is no more the live issue before this court, in view of the figures they have both suggested.


But I want to make a relevant point and it relates to the charge of arbitrariness in arriving at a figure in this matter. In my view, a trial court cannot totally avoid some element of arbitrariness in arriving at a figure one way or the other. In the computation of an amount a court of law cannot arithmetically calculate what is payable in a given case to the last figures and numbers to the mutual and egalitarian satisfaction and advantage of both parties. No, that is not possible. After all, the court, trial or appellate, is not a computer to exercise such a function. Even A computers, with the human feeder system and process, it not totally accurate in the sense of non‑bias.


What a court of law should do is to make use of the available materials before it, and in this context, the affidavit evidence and come out with some figure which it thinks will satisfy or meet the justice of the case. A court can only give that much that the evidence at its disposal proves. After all, a court cannot speculate or conjecture possible facts not before it or dabble into or flirt with facts not before it. See generally Adisa v. The State (1991) 1 NWLR (P1 168)490; Ekpeyong v. Nyong (1975)2 Sc 71; Union Beverages Ltd. v. Owolabi (1988)1 NWLR (P1.68)



After a careful consideration of the facts of the case and the concessions of counsel, it is ordered that the respondent pays the sum of N25,000.00 annually to c the appellant until the debt is totally liquidated. It is further ordered that the respondent makes a down payment of N10,000.00 seven days after the delivery of this judgment if he has not already paid the said amount at the end of February, 1991, vide the undertaking of his counsel in court on the 11th day of February, 1991.


I make no order as to costs.


MAMMAN NASIR,P.C.A.: I have had the privilege of reading in draft the lead judgment by my brother Niki Tobi, J.C.A. I agree with his conclusion and orders including his not making any order as to costs.


This is yet another debt collection case arising out of the inability of bank debtors to liquidate overdrafts due to the economic situation in the country.

I wish only to add a short comment on the application for the stay of execution in relation to the application for the instalmental payment. The two orders are complementary in the sense that in every case where a court orders payment of a judgment debt by instalments the court has by necessary implication

granted a stay of execution of the full amount of the debt for as long as the order for the instalmental payment is being complied with. A court sitting as court of first instance or as an appeal court will not deprive a successful litigant of the fruits of his success unless under very special circumstances. The court must therefore ensure that the successful party is getting the fruits of his victory ,albeit through instalments and the unsuccessful party has not been so crashed as to be unable to comply with the court order. To this extent an order for instalmental payment may in the end be for the benefit of both parties.


In the present appeal the parties have, so to say, compromised their stands and have agreed to payment of the judgment debt by instalment. I think it was a wise compromise. This appeal therefore succeed The Ruling of the learned trial Judge, Ononiba 3., is hereby varied as follows:‑


(i)      The order for stay of execution is upheld;


(ii)     The order for the instalmental payment of N1,500.00 per month is quashed and in its place an order for payment of N 10,000.00 within seven days after the delivery of this judgment if the undertaking made by Counsel to pay the said N10,000.00 by the end of February had not been fulfilled and thereafter an annual payment of N25,000 to the appellant until the judgment debt is totally liquidated.


(iii)    There shall be no order as to costs.


OGUEGBU, J.C.A.: I agree.


Appeal allowed.


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