Page images
PDF
EPUB

afterwards provided that where no Order is made the sale shall be SCHEDULE II. made under the direction of the Sheriff.

Ord. 45.

28. Subject to the provisions of the next Rule, no sale shall be Notice of made until after at least four days' public notice of the sale, nor in Sale. the case of immoveable property until after at least fourteen days' public notice thereof, unless on the consent in writing of the Judgment Debtor. Whatever notices are made elsewhere, the said notices shall be made in the town or place where the property to be sold is situated, and if the sale is to take place at any other town or place the said notices shall also be made at the place of sale.

Court may

increase or diminish

29. The Court may for any sufficient reason increase the said periods of notice in any case or diminish those periods. 30. Any person employed to execute an Order of Sale may be periods of authorised by the Court, if it thinks fit, to sell any property taken Notice. in execution by public auction without the assistance of a Licensed May authorise Auctioneer.

Sale without
Licensed

irregularity.

31. At any time within twenty-one days from the date of the Auctioneer. sale of any immoveable property, application may be made to the Setting aside Court to set aside the sale on the ground of any material irregu- Sale for larity in the conduct of the sale, but no sale shall be set aside on the ground of such irregularity unless the applicant shall prove to the satisfaction of the Court that he has sustained substantial injury by reason of such irregularity.

becomes

32. If no such application as is mentioned in the last preceding When Sale Rule be made, the sale shall be deemed absolute. If such applica- absolute. tion be made and the objection be disallowed the Court shall make an Order confirming the sale; and in like manner, if the objection be allowed, the Court shall make an Order setting aside the sale for irregularity.

Purchase

33. Whenever a sale of immoveable property is set aside, the Return of purchaser shall be entitled to receive back any money deposited or Deposit or paid by him on account of such sale, with or without interest, to Money. be paid by such parties and in such manner as it may appear proper to the Court to direct in each instance.

Certificate.

34. After a sale of immoveable property shall have become Transfer to absolute in manner aforesaid, the Court shall grant a certificate to Purchaser by the person who may have been declared the purchaser at such sale, to the effect that he has purchased the right, title, and interest of the Judgment Debtor in the property sold, and such certificate shall be taken and deemed to be a valid transfer of such right, title, and interest.

Moveable

35. Where the property sold shall consist of goods, chattels, or Delivery of other moveable property in the possession of the Judgment Debtor, Property in or to the immediate possession of which the Judgment Debtor is possession of entitled, and of which actual seizure has been made, the property Judgment shall be delivered to the purchaser.

Debtor.

Lien.

36. Where the property sold shall consist of goods, chattels, or Property other moveable property to which the Judgment Debtor is entitled, subject to subject to a lien or right of any person to the immediate possession thereof, the delivery to the purchaser shall, as far as practicable, be

L.

H

Ord. 45.

SCHEDULE II. made by the Sheriff giving notice to the person in possession prohibiting him from delivering possession of the property to any person except the purchaser thereof.

Immoveable Property in the possession

Debtor.

37. If the property sold shall consist of a house, land, or other immoveable property in the possession of a Judgment Debtor, or of a Judgment some person on his behalf, or of some person claiming under a title created by the Judgment Debtor subsequently to the attachment of such property, the Court shall, on the application of the purchaser, order delivery thereof to be made by putting the party to whom the house, land, or other immoveable property may have been sold, or any person whom he may appoint to receive delivery on his behalf, in possession thereof, and, if need be, by removing any person who may refuse to vacate the same.

In Lawful

other Persons.

38. If the property sold shall consist of a house, land, or other Occupancy of immoveable property in the occupancy of other persons entitled to occupy the same, the Court shall, on the application of the purchaser, order delivery thereof to be made by affixing a copy of the Certificate of Sale in some conspicuous place on the house, land, or other immoveable property, or in the Supreme Court Building.

Of Debts and Shares in Public Companies.

Of Negotiable
Securities.

Transfer of

Shares.

39. Where the property sold shall consist of debts, not being negotiable instruments, or of shares in any Public Company or Corporation, the Court shall, on the application of the purchaser, make an Order prohibiting the Creditor from receiving the debts and the debtor from making payment thereof to any person or persons except the purchaser, or prohibiting the person in whose name the shares may be standing, from making any transfer of the shares to any person except the purchaser, or receiving payment of any dividends thereon, and the Manager, Secretary, or other proper Officer of the Company or Corporation from permitting any such transfer or making any such payment to any person except the purchaser.

40. Where the property sold shall consist of negotiable securities, of which actual seizure has been made, the same shall be delivered to the purchaser thereof.

41. If the endorsement, transfer, or conveyance of the party in Securities and whose name any negotiable security, or any share in a Public Company or Corporation is standing, or in whom any mortgage or equity of redemption shall be vested, shall be required to transfer the same, the Registrar may endorse the security or the certificate of the share, or may execute such other document as may be necessary for transferring the same. The endorsement or execution shall be in the following form, or to the like effect: "A.B., by C.D., Registrar of the Supreme Court of the Colony of Lagos; in a Suit by E.F. versus A.B.” Until the transfer of such security or share, the Court may, by Order, appoint some person to receive any interest or dividend due thereon, and to sign receipts for the same; and any endorsement made, or document executed, or receipts signed as aforesaid, shall be as valid and effectual for all purposes as if the same had been made or executed or signed by the party himself.

Obstructing
Purchaser in

42. If the purchaser of any immoveable property sold in execu

tion of a Decree shall, notwithstanding the Order of the Court, be SCHEDULE II. resisted or obstructed in obtaining possession of the property, the Ords. 45-46. provisions contained in the preceding Rules of this Order relating obtaining to resistance or obstruction to a party in whose favour a Suit has Possession. been decreed in obtaining possession of the property adjudged to him, shall be applicable in the case of such resistance or obstruction.

ORDER XLVI.

EXECUTION OF DECREES BY IMPRISONMENT.

1. Imprisonment in Ordinary Cases.

Debtor

1. Where the Judgment Debtor is committed to prison in execu- Subsistence tion of a decree, the Court shall fix whatever monthly allowance it Allowance to shall think sufficient for his subsistence, not exceeding one shilling Prisoners. per day, which shall be paid by the Execution Creditor to the Keeper of the Prison by monthly payments in advance before the first day of each month, the first payment to be made before the Judgment Debtor is committed to prison, for such portion of the current month as may remain unexpired: Provided that if it shall be proved that any Judgment Debtor has sufficient means for maintaining himself, it shall be competent for the Court, after hearing such Judgment Debtor, to order that no subsistence money be allowed.

case of Illness.

2. In case of the serious illness of any person imprisoned under Removal of a decree, the Court may, on the certificate of the Colonial Surgeon, Prisoner in make an Order for the removal of such person to the Government Civil Hospital, and for his treatment there under custody. The period of such person's stay in Hospital shall be counted as part of his term of imprisonment, and his subsistence allowance shall be paid, unless the Court shall see fit in any case to order otherwise.

Term of

3. A Judgment Debtor shall be released at any time on the Release of decree being fully satisfied, or at the request of the Execution Debtor. Creditor, or on his failure to pay the allowance as above directed. Limitations of No person shall be imprisoned on account of a decree for a longer Imprisonperiod than one year, or for a longer period than six months if the ment. decree be for the payment of money not exceeding one hundred pounds, or for a longer period than three months if the decree be for the payment of money not exceeding fifteen pounds.

to Decree.

4. Sums disbursed by an Execution Creditor for the subsistence Subsistence of a Judgment Debtor in Gaol shall be added to the costs of the Money added decree, and shall be recoverable by the attachment and sale of the property of the Judgment Debtor, but he shall not be detained in custody or arrested on account of any sums so disbursed.

5. Any person imprisoned under a decree may apply to the Application Court for his discharge. The application shall be accompanied by for Discharge. a full statement and account of all property of whatever nature belonging to the applicant, whether in expectancy or in possession, and whether held exclusively by himself or jointly with others, or

Ord. 46.

SCHEDULE II. by others in trust for him (excepting the necessary wearing apparel of himself and his family, and the necessary implements of his trade, if any, to the value of five pounds), and of the places respectively where such property is to be found. The application shall be verified by oath or affidavit.

Procedure on

6. On such application being made, the Court shall cause the Application Execution Creditor to be furnished with a copy of the statement for Discharge. and account of the Judgment Debtor's property, and shall fix a reasonable time within which the Execution Creditor may cause the whole or any part of such property to be attached and sold, and thereafter shall fix a time for examining and hearing the parties; and if the Court shall be satisfied upon such inquiry (wherein the onus of proof shall be upon the party applying for discharge) that the Judgment Debtor has made a full surrender and disclosure of his property, and that his inability to satisfy the decree is due to unavoidable misfortune, and that his debt or liability was not contracted in any of the modes set forth in the next following Rule, it shall be lawful for the Court to make an Order for the liberation of the Judgment Debtor: Provided that it shall be lawful for the Governor in Council, at any time, by Order published in the "Gazette," to suspend or restrict the operation of this and the last preceding Rule by declaring that they shall not apply in the case of any decrees or class of decrees mentioned in such Order; and such exceptions may be made either in respect of the place or district where the cause of action may have arisen, or in respect of the subject-matter thereof or otherwise, and every such Order may by Order of the Governor in Council be annulled, altered, or amended at any time.

Proceedings upon Fraud

or other Mis

conduct of
Judgment
Debtor.
Non-Attend-

ance or

refusal to Answer at Examination.

Refusal to

satisfy

Judgment.

Fraudulent

Disposition.

Debt Con

tracted by Fraud, &c.

2. Misconduct of Judgment Debtor.

7. If a party summoned as a Judgment Debtor shall not attend as required by the summons, and shall not excuse his non-attendance to the satisfaction of the Court, or shall refuse to be sworn or to disclose the matters on which he shall be examined, or shall not answer to the satisfaction of the Court, or if it appears to the Court by any examination of a Judgment Debtor or other evidence(1) That the Judgment Debtor has then or has had since the making of the decree sufficient means to pay the money directed to be paid by him, or part thereof, and he refuses or neglects to pay the same; or

(2) That with intent to defraud or delay his creditors or any of them he has made or suffered any gift, delivery or transfer of any property, or removed property from the jurisdiction of the Court making the decree, or of the Supreme Court; or

(3) That the debt or liability in respect of which the decree has been made, has been contracted or incurred by him by fraud or false pretence or breach of trust committed by him, or by reason of any damages which he has been

adjudged to pay on account of any assault or slander SCHEDULE II. committed by him; or

Ord. 46.

obtained by Fraud.

(4) That forbearance of the debt was obtained by him by fraud Forbearance or false pretence; or (5) That the debt or liability was wilfully contracted or incurred Debt reckby him without his having at the same time a reasonable lessly Conexpectation of being able to pay or discharge it; or tracted. (6) That the Judgment Debtor under a decree other than for Disobedience the payment of money has then or has had since the of Decree making of the decree the power of complying with the for Money. decree and has refused or neglected to do so;

then and in any such case the Court may issue a warrant for the arrest of such Judgment Debtor and his detention in custody, or for his detention if already in custody, until further order, or if it thinks fit may make an Order calling upon such Judgment Debtor to show cause why he should not be punished for his misconduct.

other than

Default to be

8. If such Judgment Debtor is arrested or in custody he shall Party in be brought before the Court on the first convenient opportunity, brought and shall then, or if an Order to show cause as aforesaid has been before the made, he shall on appearing on the Return day of the Order have Court. opportunity of showing cause why he should not be punished.

of Party in

9. If such Judgment Debtor does not show cause to the satis- Commitment faction of the Court why he should not be punished, or if being Default. ordered to show cause as aforesaid he does not attend the Court and does not establish sufficient reason for not attending, the Court may remand the Judgment Debtor to Prison if he has been already arrested, or issue a warrant for his arrest and commitment as for a Contempt of Court.

of time and

10. The Court may enlarge the time for return to the Order, Enlargement and may direct that the Warrant shall only issue after a certain Conditional time, and in the event of the continued refusal or neglect of the Order. Judgment Debtor at that time to comply with the decree.

11. A person committed on account of any misconduct enume- Penalty on rated in the first five clauses of Rule seven, may be committed Misconduct of Judgment for any of the periods limited for the continuance of imprisonment Debtor. under the third rule of this Order, and for any period in addition. to the period of six or of three months not exceeding six months. Upon such person satisfying the decree or upon the request of the Execution Creditor it shall be lawful for the Court to make an Order for the liberation of the person so imprisoned to take effect either immediately or after he has been imprisoned for such portion of the term of imprisonment ordered as the Court in its discretion may think fit to appoint, and the Court may also make any Order respecting the expenses of his imprisonment that may be necessary and just. Any person, committed for misconduct in respect of refusal or neglect to comply with a decree other than for payment of money, may be detained in custody until he has obeyed the decree in all things that are to be immediately performed, and given such security as the Court thinks fit to obey the other parts of the decree (if any) at the future times thereby appointed, or in case of his no longer having the power to obey the decree, then

« PreviousContinue »