SOLOMAN OZUDGULU (APPELLANT)

v.

LOUISA NWACHUKWU (RESPONDENT)

(1963) All N.L.R. 596

 

Division: High Court of Lagos

Date of Judgment: 22nd August, 1963

Case Number: (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.

Appeal allowed: Decision of trail Court set aside: Case sent back to trail Court to decide application on its merits.

Act referred to:-

Sheriffs and Civil Process, Act, sections 23 and 66.

Orders and Rules referred to):-

Magistrate's Court (Civil Procedure) Rules, Order XVIII, rule 7(2), 8(1) and (2).

APPEAL from Magistrate's Court.

Dike for the Appellant.

Akinyede 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.

Appeal allowed: Decision of trial Court set aside: Case sent back to trial Court to decide application on its merits