IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 21ST DAY OF MAY, 2019
SUIT NO: NICN/MKD/18M/2018
MR. ITODO GENESIS EDE
(SUING AS ADMINSTRATOR OF THE
ESTATE OF ITODO MOSES UKWURU) JUDGMENT CREDITOR/RESPONDENT
1. BENUE STATE OF NIGERIA
2. BUREAU OF LOCAL GOVT. CHIEFTANCY
AFFAIRS, MAKURDI, BENUE STATE
3. BENUE STATE LOCAL GOVT. PENSION
4. ATTORNEY- GENERAL & COMMISSIONER
OF JUSTICE, BENUE STATE
A.M. Ogedengbe, Esq. for the Judgment Creditor/Respondent.
P.M. Ukande, (DDPP) Benue State Ministry of Justice for the Judgment Debtors/Applicants.
The Judgment Debtors/Applicants by a Motion on Notice dated 31st January 2019 and filed on 4th February 2019 seek the following reliefs;
1. An order for instalmental payment of the Respondents’ further calculated pension of N5,257,560.00(Five Million, Two Hundred and Fifty Seven Thousand, Five Hundred and Sixty Naira)only, in the sum of N400,000,00(Four Hundred Thousand Naira)only, monthly till the judgment sum is fully liquidated.
2. An order granting leave to the 3rd Applicant to commence the instalmental payment on behalf of the Applicants on completion of payment of the first judgment debt of N5,741,704.80(Five Million, Seven Hundred and Forty One Thousand, Seven Hundred and Four Naira, Eighty kobo)only, as per the court’s earlier order of 13th March 2018.
3. And for such further order(s) as the court may deem fit to make in the circumstances of this case.
In support of the application is a five paragraph affidavit deposed to by one Mr. Elijah Angwa and exhibit LGPB1. A written address of counsel also accompanied the application.
In opposing the application, the Judgment creditor/Respondent on 4th April 2019 filed a twenty paragraph counter affidavit deposed to by Itodo Genesis Ede (the Judgment Creditor), and exhibits A- H were attached to the said affidavit and a written address was also caused to be filed to accompany the application.
In the affidavit in support of the application, the deponent averred in paragraph 3 (i) that this Honourable Court had on 5th December 2017 entered judgment in favour of the Respondent to the tune of N5,741,704.80 (Five Million, Seven Hundred and Forty One Thousand, Seven Hundred and Four Naira, Eighty kobo)only, with an order directing the Applicants to calculate and pay the pending pension entitlements of the deceased. A copy of the document containing the calculated pension and gratuity of the Respondent’s deceased father was annexed as exhibit LGPB1.
The deponent avers further that on 13th March 2018, the court gave an order for the 3rd Applicant to pay the judgment sum of N5,741,704.80(Five Million, Seven Hundred and Forty One Thousand, Seven Hundred and Four Naira, Eighty kobo)only, in monthly installment of N400,000.00 (Four Hundred Thousand Naira)only, after a down payment of N1,000,000.00 (One Million Naira)only, to the Respondent and that the Applicants have been in continuous compliance with the order.
The Applicants aver also that for over four years the 3rd Applicant has been receiving just N200,000,000.00 (Two Hundred Million Naira)only, monthly for payment of pension and gratuity to thousands of pensioners and death benefits to next of kin of deceased staff of the Local Governments which is grossly inadequate, and that the unpaid gratuity, pension and death benefits amounts to over N20,billion. Thus due to scarcity of funds, the 3rd Applicant proposes to pay the calculated pension by monthly installment of N400, 000.00(Four Hundred Thousand Naira) only, which shall commence after the liquidation of the first judgment debt and also function for the generality of the public.
Counsel to the Applicants in his written address raised a lone issue thus;
"Whether the Applicants have made out a case for the court to grant the application."
Counsel placed reliance on the depositions in the affidavit evidence particularly paragraphs 3 and 4 which clearly state the huge financial burden of the 3rd Applicant saddled with the responsibility of paying the judgment debt without corresponding funds. Counsel urged the court to grant this application to enable the applicants to continue to function and also pay the judgment debt.
The respondent in his counter affidavit avers that the judgment of the court given on 17th December 2017 was never complied with even upon repeated demands until he filed a contempt proceeding against the Permanent secretaries of the 2nd and 3rd Applicants after their counsel filed a motion for payment by installments which was granted on 13th March 2018. The Respondent avers further in paragraphs 4 and 5 of the counter affidavit that the Applicants flouted the orders of payment by installments as scheduled and by the unpleasant experience he had in getting the monies paid, he will no longer concede to payment by instalment. The Respondent relied on exhibits A-H showing the order made and how the payments were also made which according to him were in bad faith. Hence his counsel has filed garnishee proceedings and it is all the Judgment debtors/Applicants that are indebted to him and not just the 3rd Applicant.
Counsel to the respondent formulated a lone issue thus;
"Whether the Defendants are entitled to the equity of this Honourable Court in seeking order for instalmental payment."
Counsel submits that he who comes to equity must come with clean hands as according to him the Applicants were granted a similar prayer on 8th March 2018 which was consensual because the Respondent did not oppose that application but the orders as shown on the face of exhibit B hereto annexed were never complied with by the same Applicants now seeking the same reliefs. Counsel placed reliance on paragraphs 9-15 of the counter affidavit.
Counsel further submits that Order 49 Rule 11 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 states that “where a judgment debt directs the payment of money, the court may for any sufficient reason order that the amount shall be paid by instalments with or without interest”. However the use of the word may, for any sufficient reason clearly shows that the court is not mandated to grant such an order and that cogent and sufficient reasons have not been given by the Applicants and that it is wrong to say that it is the 3rd applicant that was the only one sued. Counsel therefore urged the court to disregard the motion for payment by instalments and make an order absolute in any of the accounts garnished if the judgment sum is found therein.
I have carefully gone through the affidavits filed by learned counsel for the parties and also considered their written submissions and wish to state that the issue for determination is whether the court can grant payment by instalments of the judgment debt.
An application for payment of judgment debt by installments is dependent on the exercise of discretion of the court which must be exercised judicially and judiciously. In every application that calls for exercise of the court’s discretion, the onus is on the applicant to satisfy the court that special circumstances exist to warrant the court to order that the judgment debt be paid by instalments. There, the Applicant must in his supporting affidavit make a full and honest disclosure of his assets and income, liabilities and obligations and by documentary evidence in confirmation thereof that a refusal of the application will create hardship. The court has held in the case of African Continental Bank Ltd. V. Dominico Builders Company Ltd. (1992) 2 NWLR (part.223) 296 at 297- 298 and 302-303, that “A prayer for instalmental payment of judgment debt when granted operates as a stay of the judgment’’, and “it is must be appreciated that a request for instalmental payment which will stay execution of a judgment is a prayer for equitable relief”.
And equitable relief requires disclosure of sufficient facts to enable court exercise equitable jurisdiction. Equally, in the case of Okafor V. Nnaife (1987) 4 NWLR (part.64)129 at 138, the Supreme Court held that;
“A court cannot do equity in the right manner unless there are sufficient facts disclosed in support of the exercise of that sort of relief which is an appeal to the conscience of the court. Every court called upon to exercise its discretion to order installment payment of a judgment debt must therefore take it that it is a judicial function that needs a careful analysis of the facts. It is certainly not an order to be made as a matter of course. Any relief not granted as a matter of course must necessarily be sufficiently justifiable on the facts. In other words there must be some special circumstances based on full disclosure.”
In essence the Applicant seeking the exercise of the court’s discretion in his favour must show the special circumstances that exist to impress on the court to make orders in his favour. This is borne out of the fact that the courts do not want to deny the judgment creditor the fruit of his judgment. See the cases of Okafor V. Nnaife (supra), Martins V. Niccanar Foods & Co. Ltd (1998) 2 NWLR (part.74) 75 and Ajomale V. Yaduat (1991) 5 NWLR (part.191) 266 and of Heritage Banking Co. Ltd. V. National Universities Commission (2014) 15 NWLR (part.1429) 76 at 81.
What constitutes special circumstances vary from case to case.
The Applicants throughout their depositions have in their supporting affidavit deposed in paragraphs 4b, 4c and 4d as follows;
“b. That for over four years now, the 3rd applicant has been receiving just about N200,000,00 (Two Hundred Thousand Naira) only, monthly for payment of gratuity and pension to thousands of retirees and death benefits to next of kin of deceased staff of Local Government which is grossly inadequate.
c. That as at now, the unpaid gratuity, pension and death benefits of the deceased staff are over N20 billion (Two Billion Naira) only.
d. That due to scarcity of funds, the 3rd Applicant proposes to pay the further calculated pension (judgment debt) by monthly instalment of N400, 000.00(Four Hundred Thousand Naira) only, as earlier granted for payment of the first judgment debt and for same to be commenced immediately after the liquidation of the first judgment debt as this is the only way the 3rd Applicant can pay the entire judgment debt and still function for the generality of the public including the respondent.”
It can be observed from the above that the Applicants did not show their income, assets and liabilities and no documentary evidence in form of audited reports of bank statements to buttress the above facts so deposed to hence there is no full disclosure of the financial status of the Applicants. See the case of Heritage Banking Co. Ltd. V. National Universities Commission (supra) 91.
In any case the respondent has via his counter- affidavit challenged the above deposition in his paragraphs 3, 4, 18 and 19 thus;
“3. That paragraphs 3 (iv) is true only to the extent that the order of court was given on the 17th December 2017 and was never complied with despite repeated demands until contempt proceedings was initiated against the Permanent Secretary Bureau of Local Government and Chieftaincy Affairs and the Permanent Secretary Local Government Pensions Board.
4. That the experience of the initial installment payment entered into with the 3rd Respondent on 13th March 3018 and the way and manner they flouted the payment schedule as ordered by the court leaves the claimant with no choice than to believe that if entered again, the experience would be unpleasant and it would be done in bad faith.
5. That our experience in the course of collecting the installment payment was at certain times humiliating.
6. That we have initiated garnishee proceedings and it is all the Defendants/Judgment Debtors that are indebted to us and not the 3rd Defendant/Judgment Debtor and if any garnished account can satisfy the debt, we will be glad if the Order Nisi can be made absolute against it.”
The above facts deposed to by the Respondent in challenging the grant of the application for payment by installments has not be objected to by the Applicants by way of further affidavit to show actually the financial constraint to pay the judgment debt in lump sum. The position of the law is that where there is no reply to a counter affidavit, the facts therein are deemed admitted. See the case of Jumbo Unanganga V. M.G. Imo State (1987)3 NWLR (part. 59)193 and Zenith Bank Plc V. Chief Godwin Omenaka & Anor (2016) LPELR-40327 at page.31.
In my view therefore, the Applicants have failed to discharge the onus on them to show that they are financially incapacitated and constrained to pay the judgment debt in lump sum and agree with the Respondent that the application is aimed at denying him the right to take benefit of the fruits of his judgment. The exercise of the court’s discretion can only be regarded as judicial where proper reasons are shown by the Applicants. See the case of African Continental Bank Ltd. V. Dominico Builders Company Ltd. (supra page 299-300.
Consequently, I am of the opinion that the court cannot make an order of payment of the judgment debt by instalments in the circumstances of this case. The application for payment of the judgment debt by installments fails and is hereby refused.
Ruling is entered accordingly. I make order as to cost.
HON. JUSTICE S. H. DANJIDDA