IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
BEFORE HIS LORDSHIP THE HONOURABLE JUSTICE E. N. AGBAKOBA
DATED 30TH MAY, 2018 SUIT NO. NICN/ABJ/24M/2018
SUIT NO. NICN ABJ/42M/2018
DR DANIEL ETIM BASSEY JUDGMENT CREDITOR/APPLICANT
1. INTERNATIONAL RESCUE ORGANISATION NIGERIA JUDGMENT/DEBTOR/
2. SARAH NDIKUMAMA RESPONDENT
S. S. MSHELLIA ESQ. for the Judgment Creditor Applicant Respondent.
O. O. OLOWOKURE for the Judgment Debtor Respondent Applicant
1. The Applicant/Judgment Creditor filed a MOTION EXPARTE on 22nd January, 2018 supported by a 4 paragraph affidavit deposed to by Joseph Boli, seeking for the following Orders.
1) Leave of this Honorable Court to issue a Writ of Execution against the Respondent /Judgment debtor in this suit.
2) Leave of this Honorable Court to levy Execution on all the movable property belonging to the Judgment Debtor/Respondent.
2. WRITTEN ADDRESS IN SUPPORT OF MOTION EXPARTE
Whether in the light of all facts placed before this Court, the Applicant is entitled to the grant of this application.
4. Counsel in answering this question referred the Court to Order 49 of this Court Rule and Section 20(1) of the Sherriff and Civil Process Act. AKPUNIM Vs. BEKASAT OVERSEAS (1995) 5 NWLR pt. 393 pg. 42 at 66.
5. He submitted that sub section 2 has made it compulsory that for an application to be successful the date on which the Court ordered its judgment to be obeyed must have elapsed and this they have deposed to in paragraph C (v) of our Affidavit.
6. The judgment debtor Respondent Applicant on the 31st January 2018 in a separate application file under Suit NICN ABJ 42M filed a Motion on Notice for an order staying the execution of the Judgement of this court and an order directing the JDRA to raise a bank Guarantee in favour of the Judgment Creditor with 14 days with a supporting affidavit and written address, arguing that they had filed a Notice of Appeal on the 23rd January 2018 and that they were wiling to raise a Bank Guarantee for the judgment sum in the Judgment creditors name for the judgment sum.
7. The JCAR filed a counter affidavit and a written address contending that they the JC will be in a position to refund the judgment sum in the event that the matter is upturned on appeal and that the JD did not disclose any special circumstances for the grant of a stay.
8. On the date fixed for adumbration the court heard learned Counsel for the judgment creditors application and subsequently heard the application of the Judgment debtor and informed THE parties that the Court would take both application and deliver a single Ruling.
9. By this direction and with the acquiesce of the parties these suits were in fact consolidated which enables this court to pursuant to Section 14 NICA 2006 and in line with the provision of Section !2(2) this court is empowered to determine these applications in this manner. I so find and hold
10. I have carefully considered the processes before the court and the arguments of Counsel to the Applicant and having carefully reviewed all the authorities cited, read through all the relevant processes and digested the contention of the Applicant and his written submission is herewith incorporated in this Ruling and specific mention would be made to it where the need arises. The issue for determination in this suit to my mind is whether there is any merit to the Applicant’s Application.
11. The Rules of Court provide that an Applicant seeking to enforce its judgement shall seek the leave of court to issue a writ of execution.
12. In order to succeed the ex parte motion or motion on notice is to be accompanied by an affidavit, that identifies the judgment order whether for payment of money, in which case it shall state the amount due by the judgment and the amount due as at the date of the Application.
13. Stating that a demand has been made and the Judgment Debtor failed or refused to comply, and any other necessary information and a written address.
14. I am satisfied that the process of the Applicant duly comply with the provisions of the Rules of this Court and the Judgment Creditor has satisfied the requirement of the law for the grant of their application.
15. The Judgment Debtor on the other hand has filed an application for stay of execution arguing valid appeal and stating that if the Court grants the Judgment Creditor’s application the res would not be recoverable as according to the Judgment Debtor the Judgment Creditor is employed but would have spent the Judgment sum by the time they succeed in their appeal. Therefore the Judgment Debtors and are asking the court to order them to raise a Bank Guarantee in favour of the JC.
16. At this point the Judgment Creditor argues that the judgment debtors Application is in bad faith in that the Judgment Debtors have not complied with the court’s judgment and their prayers are further attempt to deny the Judgment Creditors the fruit of his judgement.
17. The JDRA maintain that they had filed a Notice of Appeal since January 2018, be that as it may, Section 47 of the NIC Act 2006 made provision to the effect that ;where permitted by this Act or any other Act of the National Assembly, an appeal to the Court of Appeal from the decision of the Court shall not operate as a stay of execution but the Court may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with Rules of Court.
18. The Rules of this Court in Order 64 made provision for the Stay of Execution in Rules 8(1) –(4) particularly the 2nd proviso to Order 64 Rule 8(3) which states that “Provided further that in application seeking for the stay of execution of the judgement pending appeal …..the court may stay the execution of the judgment on the condition that the judgment debt is paid into an interest yielding account with the name “The Chief Registrar National Industrial Court of Nigeria “ pending the hearing and determination of their Appeal.”
19. It is pertinent to note that in the case of GOVERNOR, OYO STATE V. AKINYEMI (2003) 1 NWLR (PT 800) PG. 1 the Court held thus: "All courts of record, be they trial or appellate possess power either inherent or statutory of preservation of the res in their custody. See KIGO (NIG.) LTD. V. HOLMAN BROS. (NIG.) LTD. (2001) 47 WRN PG.1 THE LAMORA (1916) AC 27. Once a matter is on appeal, the court has jurisdiction to preserve the res. The exercise of this discretion is dictated by the facts and circumstance of each case. Where a party complains in a monetary judgment that the Respondent may not be able to secure a refund of the judgment debt after an appeal, the court has a discretion to grant a conditional stay upon the payment of the judgment/debt into an interest yielding account for delivery to who ultimately establishes title after an appeal. This court is obliged in the instant appeal to make an order that will be in the interest of justice and conducive - with the effect that the Appellant shall not come back to a hollow victory after an appeal in their favour, while Respondent shall not suffer any loss if the judgment of this court is confirmed on appeal." Per Adekeye, J.C.A. (Pg. 21-22, Paras C-C).
20. In view of the foregoing, I hereby make the following orders:
1. The Defendant /Judgment Debtor/Applicant shall deposit the judgment sum as stated in the judgment of this court delivered on the 24th October, 2017 in suit NO:NICN/LA/102/15 between the parties above with the Chief Registrar of this Court.
2. The Chief Registrar of this Court shall deposit the said money in an interest yielding account pending the outcome of the appeal or any directive or decision of the Court of Appeal in this matter.
21. This is the Court’s Ruling and it is hereby entered.
Hon. Justice E. N. Agbakoba
PROSIDING JUDGE, ABUJA JUDICIAL DIVISION.