Emmanuel Ohiri – Money Judgment;Unclogging the wheel of Justice

Emmanuel Ohiri – Money Judgment;Unclogging the wheel of Justice



Introduction
The
legal mantra, “a winning party has a right to enjoy the fruit of his judgment”
has been greatly abused in Nigeria. Justice delayed is justice denied even
though litigation under the Nigerian judicial system is more often than not
protracted. Once a claimant initiates an action, it is reasonable for him to
expect that the match will result in a penalty shootout after warming up,
playing till full time and extra time. This is largely due to the various
administrative hurdles, professional antics and unscrupulous practices, which
plagues the administration of justice system in Nigeria (a huge topic for another day).

 A
tool usually deployed by legal Practitioners to choke the delivery of justice
and ensure the triumphant party merely obtains a Pyrrhic victory is by
obtaining an order for stay of execution. This order prevents the successful
party (Judgment Creditor) from being rewarded by the losing party (Judgment
Debtor). Whilst the rules of court provide for various ways of enforcing
judgments, the defeatist attitude of litigants in Nigeria and sadly as well as
their solicitors, lead to frivolous applications for stay of execution before
the ink is dry on the judgment. [I may have prepared one or more of such applications
in my experience ;-)]. For fear of being chastised by the Court of Appeal (in the case of trial courts),
and under the guise of preserving the “Res”, Nigerian courts have cultivated
the habit of granting applications for stay of execution of judgments it has
toiled over the years to deliver. In my opinion, these courts usually fail to
consider the circumstances of each case and or the weight of evidence adduced
by the Applicants before granting such orders. This is unjust especially in the
case of money judgments.
Stay of Execution of a Money Judgment
A
Judgment Creditor is entitled to reap the benefits of a judgment delivered in
his favour until the same is set aside. Nevertheless, an unsuccessful litigant
may apply for stay of execution but he must show substantial reasons for
wanting to deprive the successful party of the fruits of his judgment. There
are however exceptional and special circumstances that may warrant the
deprivation of a successful party of the fruits of his money judgment. These
circumstances are entirely at the discretion of the court. The court is
required to consider the equal right to justice of both parties. The Supreme
Court’s decision in U.B.N
Ltd v Odusote Bookstore Ltd
may shed some light on this point,
as the court held: A
discretion that is based (sic) in favour of an appellant for stay but does not
adequately take into account the respondent’s right to justice is a discretion
that has not been judicially exercised”
.[1]
In
considering the parties’ equal right to justice, the law stipulates that one of
the circumstance where a Judgment Debtor should be allowed to retain the
judgment debt pending appeal, is where there is a pending valid appeal before
the superior court and the Judgment Creditor consents to such an arrangement.
See U.B.N Ltd’s case
referred to above. Consequently, where an appeal has not been entered at the
superior court and the Judgment Creditor has not consented to the Applicant
retaining the judgment sum, the court has no power to permit the Applicant to
hold the same.
 Responsibility of the Court
As
an application for stay of execution is an exercise of the equitable powers of
the court, an Applicant for a stay of execution of a money judgment must
approach the court with clean hands by exhibiting in its affidavit, its last
audited annual statement of account to provide the court with full and frank
knowledge of its financial position. The court has held that in the case of a
company, the law enjoins it to prepare an audited annual statement of account showing
its assets, which will include its reserve (if any) and liabilities. Where it
fails to do so either through neglect to disclose relevant facts or suppression
of them, it has not shown readiness for fairness and equity[2]. 
This
means that the equitable powers of the court may only be invoked where the
Applicant had provided the court with detailed proof (in its affidavit) of its
assets and liabilities. This requirement is more critical where the Applicant
has either claimed poverty or opulence as the basis for grant of stay of
execution. The requirement formed the basis of the decision of the Court of
Appeal in Chukwu v.
Onyia[3]
, where the Court of Appeal per Uwaifo JCA held as
follows: “That is the only
way the court can best exercise its discretion to grant or refuse the stay.
Bare assertions of poverty or opulence by him do not assist, afortiori when the
facts are suppressed or misrepresented by him. Arguments based on them make a
ritual of the principles and in effect invite the court to exercise its
discretion on nothing other than those principles, or indeed on false facts,
instead of upon true and full facts guided by the principles. This does
incalculable harm to the course of justice.”(Underlining ours)
 Conclusion
It
is important that the court should refuse to grant applications for stay of
execution of a money judgment where Applicants fail to exhibit their financial
statement or a breakdown of their assets and liabilities towards enabling the
court invoke its equitable powers. A Judgment Creditor should not be denied the
fruit of his judgment on insubstantial grounds or lack thereof in the
Applicant’s affidavit. At the very least, the court should invoke its power to
order the payment of the judgment debt to the Chief Registrar of the court, who
shall in turn deposit the same into an interest yielding deposit account in a
reputable commercial bank pending the determination of the appeal[4].
[1] (1994) 3 NWLR (Pt 331) 129 at 150 – 151
[2] Guinea Insurance Plc. v. Monarch Holdings Ltd. (1996) 3 NWLR pt. 436 p.365 @371
G-H
[3] (1990) 2 NWLR pt.130 p.80 @84-85 H-B
[4] Kwarapoly vs. Oyebamiji (2008) 3 NWLR (part 1075) page 459, Kopek Construction
Ltd vs. Ekisola (1998) 10 NWLR (part 568) page 120.

Emmanuel Ohiri
TNP

Emmanuel Ohiri is a vibrant and dynamic young lawyer with a high level
of intellectual curiosity, passion for perfection and tactical
proficiency.

Ed’s
Note – This article was originally posted here.
5 TIPS TO BEING A GREAT TRIAL LAWYER

5 TIPS TO BEING A GREAT TRIAL LAWYER

Cross Section of Lawyers at a Call to Bar ceremony

Being a great trial lawyer is not
an easy task because great trial lawyers are not born but made. Advocacy is an
art and like every other art, the skill needs to be groomed. No great artist
woke up from a dream bursting with musical expertise
like abami eda,
rather it took hard-work, perseverance, consistency and commitment to horn
their talents and skills, the same rule applies to great trial lawyers. 


When I was a white wig, I was
always interested in having a great advocacy practice, so I searched for books
and essays on tips on how to become a great advocate and in my search, I came
across a book by F. Lee Bailey titled “To Be A Trial Lawyer” . I found the book
quite informative and over time, I return to its pages like a Tax Collector
looking at his tax notes over and over again trying to discover any unaccounted
tax clearance. I hope to share some of the great tips I learned from F. Bailey
with you in this blog and I hope it inspires you to strive to attain excellence
in your legal career. I will also be using excerpts from F. Baileys’ book to
illustrate the points. 
 TIP 1
HAVE A GOOD COMMAND OF THE ENGLISH LANGUAGE

“English in every
form should be your first concern. The use of language is a trial lawyer’s
daily fare and if he is good at it, a daily joy as well. Only those who have
refined and polished their ability to handle words in any and every form can
know the delight that such a faculty offers. Among the many talents that can
boost one’s self confidence, none surpasses the ability to spellbind an
audience. Only entertainers, Political figures, lecturers and trial lawyers
experience the surge of adrenaline that comes from speaking well”.


I remember watching a certain
Senior Advocate of Nigeria (SAN) as he marshalled his arguments before the
court, not only was I impressed by his command of the English language but the
clarity of his speech and ability to communicate the case of his client to the
court without mincing words or using unnecessary expletives provoked in me and
other counsel in court that day a high level of admiration. Judges have a very
short attention life-span usually because they have to listen and write almost
all what the litigants and lawyers say, if you say too many stories that
touch the bone marrow
waste their time by puffing too much smoke without
saying anything useful to your clients case, they tend to zone out. It’s
crucial you express yourself briefly while at the same time marshalling out
your points. It’s no gain saying that a judge will hardly pay attention to a
lawyer that cannot speak well.

Nigerian Supreme Court

TIP 2
KNOW YOUR EVIDENCE
“Every trial lawyer
must have rules of evidence carefully filed in his memory because during a
trial there is rarely time to look them up. If you try lawsuits for a living,
you will literally lie in the world of so – called proof. It is perhaps best to
understand right here that most cases are decided on something less than strict
proof. If something is so clear that it is really “proven”, it probably won’t
even be in contention during trial”.


Recently, in the National
Industrial Court, I witnessed two opposing counsel trash out the rules of
evidence in open court, the Plaintiff’s counsel sought to tender a document
through its witness and the Defendant’s counsel objected on the grounds that
the document was inadmissible, for about 6 minutes, both lawyers argued back
and forth before the judge made a Ruling in favour of the Defendant. If the
Defendant’s Counsel did not know his rules of evidence, it is safe to assume
that the Plaintiff will have tendered an inadmissible document which would have
been adverse to the case of the Defence.

TIP 3
PREPARING FOR TRIAL
“When you begin to
go to court for a living, the most common shortcoming you will see in your
colleagues and opponents will be just such lack of preparation. Pre-trial
preparation has often been compared to a part of the ice berg that sank the
Titanic, namely the part that was underwater (about 87% of the whole). You may
not be able to see it from a distance, but you know damned well it’s there. The
trial itself is like the portion that sticks up out of the water for all to
see. Preparation is exhausting, painstaking, and occasionally heartbreaking
work, but it is an absolute duty that a trial lawyer owes to his client”.


I once appeared before a High
Court basking in confidence, I assumed I was ready for the day’s proceedings
and was looking forward to trashing outwit opposing counsel with my
arguments. Imagine my surprise when the opposing counsel argued his points from
a rule of procedure I had not expected nor researched. The judge made a decision
in his favour and I lost. That day hurt, LOL, I experienced what over –
confidence and lack of adequate preparation could do to a lawyer first hand, maybe
the sinister smile from a law school class mate who was on the opposing side as
we walked out of court also made it worse, the smile said I beat you and
stuck its tongue out
. I have always ensured I prepare adequately for
proceedings in court since that day.

TIP 4
HARDWORK
Hard-work does not kill, as a
lawyer you must be ready for long hours of research, critical thinking and you
must never give up. You must always believe there is always a way and you must
get busy trying to find that way in other to win your case in court, legally of
course not through bribery or other unwholesome practices.

TIP 5
BE RESPONSIBLE FOR YOUR CAREER GROWTH  
Finally, you must be responsible
for your career growth as a lawyer, seniors do not expect to spoon feed on the
job and they expect a certain level of ability from you. Personally, I take
responsibility for my career by ensuring I develop myself daily in the
following aspects: Advocacy; Use of English; Legal Drafting; Law practice
management and Networking. You may want to create your own list and get on with
developing your skills in those regard.

Becoming a great trial lawyer is
not a days’ job, it takes a very long time to horn your skills to perfection, more
reason why you should start now. If you know any other great tip for being
a good trial lawyer, don’t hesitate to write them in the comment box, a great
lawyer must be ready to learn daily and i will like to learn from you too.

Adedunmade Onibokun, Esq
@adedunmade