IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP HONOURABLE JUSTICE I.S GALADIMA
DATE: 23rd MARCH 2020 SUIT NO: NICN/OW/15M/2019
MRS. IBE CHIDINMA RITA
(ADMINISTRATOR OF TONY IBE) JUDGMENT CREDITOR/RESPONDENT
· CHIEF TONY IFEANYI IGBOJEKWE
(CHAIRMAN BOARD OF DIRECTORS
IMO NEWSPAPERS LIMITED). JUDGMENT DEBTORS.
· IMO NEWSPAPERS LIMITED.
· THE ATTORNEY GENERAL OF IMO STATE JUDGMENT DEBTOR/APPLICANT
1. ACCESS BANK PLC.
2. DIAMOND BANK PLC
3. FIRST BANK PLC
4. FIRST CITY MONUMENT BANK PLC GARNISHEES
5. SKYE BANK PLC
6. UNITED BANK FOR AFRICA PLC
7. UNION BANK PLC
8. ZENITH BANK PLC
· L.U.N. NWAEKETI; E.K. CHUKWU FOR THE JUDGMENT CREDITOR/RESPONDENT;
· OSITA CHUKUWUEMEKA FOR THE 3RD JUDGMENT DEBTOR/APPLICANT;
· E.N. ANYANWU FOR THE 2ND AND 6TH GARNISHEES AND HOLDING BRIEF FOR H.N. DURUOHA FOR THE 4TH GARNISHEE;
· C.N. OKAFOR FOR THE 3RD GARNISHEE.
1. On Monday, the 16th day of March 2020, the 3rd Judgment Debtor’s/Applicant’s Counsel moved and adopted his arguments in respect of his application filed on the 29/1/2020 which was brought by way of a motion on notice pursuant to Order 5 rules 2 (1) and (2) of the Rules of this Court seeking for the following order:
a. An order of this Court setting aside the Garnishee order made by this Court attaching the following accounts of the Imo State Government:
i. 101618729 (sic) – Imo State Government Collection Account;
ii. 1014313834 –Imo Wonder Lake Resort and Conference Centre;
iii. 10120012174–Examination Development Centre;
iv. 1005956337 –Owerri Capital Development Fund;
v. 1019164440 – Imo State Govt Collection Account;
vi. 1020607565– BIR/Imo State Local Govt. Joint Account;
vii. 1018182656 –IMSG Security Account;
viii. 1020906299 –BIR Reserve Account;
ix. 1019249355 – Imo State Agric Loan Recovery.
2. The grounds for which the application is sought are that:
a. Imo Newspaper Limited is a Limited Liability Company registered under the Company and Allied Matters Act;
b. It is a separate entity from the 3rd Judgment Debtor and can therefore sue and be sued in its capacity as such;
c. It was wrong to have attached the accounts of the Imo State Government as stated in the order of this Court made on the 3/12/12 to offset the debt owed by the 3rd Defendant/Judgment Debtor.
3. The application is supported by a 4-paragraph affidavit and a written brief.
4. In response, the Judgment Creditor as Respondent, also filed a counter affidavit of 4 paragraphs and a written brief of arguments and submissions by her Counsel on 5/2/2020.
5. According to the 3rd Judgment Debtor/Applicant, this Judgment Creditor served an enrolled order of Garnishee on him as a result of which he became aware of the Judgment of 13/12/2007 by the Imo State High Court of Justice. Allegedly, the erstwhile Attorney General of the State inadvertently omitted to formally hand over to the present Attorney General, the same judgment. Learned Counsel for the Applicant believes that what gave rise to the cause of action was that the original Claimant (who is now deceased and is now represented by the administrator of his estate in these post judgment proceedings), was not paid his entitlements by the 2nd Judgment Debtor. The 2nd Judgment Debtor is accordingly a body corporate capable of suing and being sued in its corporate name. The Judgment Creditor accordingly now misled the Court into giving judgment against the 3rd Judgment Debtor for a grievance he had with his employer, the 2nd Judgment Debtor. This Court on the application of the Judgment Creditormade a garnishee order nisi against the 3rd Judgment Debtor and attached the accounts of the Imo State Government which was not a party to the contract and dealings of the Judgment Creditor and the 1st and 2ndJudgment Debtors.
6. The applicant’s Counsel thus raised 3 issues for determination thus:
a. whether the garnishee order on the accounts of the government of Imo State was proper in view of the facts of this case;
b. whether this court ought to set aside the garnishee order made in this case;
c. whether this court ought to make the garnishee order absolute.
7. The argument made essentially is that the 2nd Judgment Creditor as shown in the affidavit in support is a body corporate and thereby has a distinct personality capable of suing and being sued. He cited the case of OMISADE V. AKANDE (CITATION SUPPLIED) inter alia as well as Sections 63 and 65 of the CAMA. Consequently therefore, this Judgment Creditor inveigled this Court into giving judgment against the 3rd Judgment Debtor and in procuring a decree order nisiin this application for garnishment. Counsel concluded by urging this Court to resolve issue 1 in the negative, issue 2 in the affirmative and issue 3 also in the negative and to hold this application as meritorious.
8. Relying on his Counter Affidavit, Mr. Nwaeketi for the Respondent submitted a lone issue for determination which is whether the applicant has made out a case warranting the grant of this application?
9. In his argument, he submitted that the 2nd Debtor is a parastatal and therefore an agency of the State Government of Imo which is represented by the 3rd Judgment Debtor/Applicant. The 2nd Judgment Debtor is therefore not a distinct entity from the State Government but rather under the management and control of the State. He argued on that the 3rdJudgment Debtorcontrols and manages, recruits its employees, pays them, and funds same in addition to appointing its management. He said that besides, the Applicant has insufficient facts placed before this Court to show that the 2nd Judgment Debtor is a limited liability Company and thus distinct from the State Government of Imo. He relied on the case of GOODWILL AND TRUST INVESTMENT LTD AND ANOR V. WITT AND BUSH LTD (CITATION SUPPLIED).
10. Learned Counsel submitted that this application is a ruse meant at misdirecting this Courtto sit on appeal over a decision made by a Court of coordinate jurisdiction. He said the application is made mala fides as it aims to further frustrate the Judgment Creditor who had obtained this judgment since 2012. That the applicant here was a party in that suit all along and never for once raised this issue before the trial Court from commencement till Judgment. The Judgment Debtor also did not file any appeal against that judgment. The applicant is accordingly late in raising its non-liability of the judgment debt which in any event was made while he was a party in the substantive suit. This Court cannot entertain the application since in doing so, it will amount to nullifying her own judgment – ACB V. NWAIGWE (CITATION SUPPLIED). He argued on that the only reason a Court might even consider setting aside its own order is when the same was procured illegally, or fraudulently or entered without jurisdiction which is not the case here – SANUSI V. AYOOLA AND OTHERS (CITATION SUPPLIED). Accordingly, none of these were shown by the Applicant as such this application must be dismissed in favor of the respondent. He cited and relied on this Court’s earlier decision in suit number NICN/OW/2M/2019 and urged this Court to refuse the Applicant’s application entirely.
11. This Court had on the 21/11/2019 granted inter alia, leave to the Judgement Creditor to register the judgment of the High Court of Imo State in Suit No. HOW/23/2002 delivered per A.O.H Ukachukwu, Jon 13/12/2007 and the subsequent consent judgment made by Ngozi Opara, Jon 11/6/2012 and to enforce the said judgment by way of application for the garnishment of the funds in these Garnishee banks for the purpose of satisfying the total judgment sum of N8,954,019.82. On the 3/12/2019, an order nisi was made in this regard and the Garnishees were ordered to show cause why the same should not be made absolute. Pursuant to the order nisi made by this Court, this Applicant as the 3rd Judgment Debtor, filed this motion seeking to set aside the order nisi made on the grounds essentially that the accounts (which particulars are provided above and attached by this Court), do not belong to the 2nd Judgment Debtor who for all intents and purposes is a limited liability company and a separate entity from the State Government and as such, the accounts of Imo State Government should not have been attached for the purpose of executing the judgment entered since 2012 by consent of the parties involved.
12. On the date of hearing the application on 16/3/2020, this Court made a consequential orderpursuant to the application by the Judgment Creditor’s Counsel directing the 4th Garnishee Bank, Messrs.FCMB PLC, to make a bank draft in the name of the Registrar of this Court and the said sum of N8,954,019.82 to be deposited into anescrow yielding account until the determination of the application which is now being resolved today23/3/2020.
13. It is obvious to this Court from the onset, that the judgment of the Imo State High Court made since 2007 – the mode of payment of which was reduced in writing in a terms of settlement on 29/5/2012 and subsequently made consent judgment of the parties on 11/6/2012, was never challenged by the Judgment Debtors on appeal. The 3rd Judgment Debtor’s only grouse now is that the accounts of the State Government should not have been attached by the Judgment Creditor in these proceedings since the 2nd Judgment Debtor is a separate corporate entity. The argument on the other hand is that the 2nd Judgment Debtor is an agency of the State Government of Imo State and since the 3rd Judgment Debtor is a party to the substantive suit anyway, he cannot separate himself from the liability arising from the payment of the judgment debt.
14. The sole issue to determine in this application therefore is whether the application to set aside the order nisi of 3/12/2019 should be granted in favour of the 3rd Judgment Debtor.
15. Generally, a superior Court of record has the power to set aside its own order where it was made without jurisdiction either arising from a violation of the processes of the Court like where a party complains of non-service, or where the order was obtained by fraud or deceit particularly where the party who stands to benefit from such misleading information inveigled the Court knowingly into obtaining such order.
16. However, when the suit was instituted in 2002 and at the time judgment of the State High Court was made in 2007, the 3rd judgment debtor was a party in the same suit and was aware of the case and involved in same. The argument that the 2nd Judgment Debtor is a limited liability company and as such the liability for the judgment sum now being sought to be garnished must not be borne by the State Government, thus becomes of no moment since it amounts to raising an issue that was determined or may have been so determined by the Court and same must therefore be considered res judicata. Of course, this Court evenlacks the jurisdiction to sit on appeal over its decisions or those of coordinate jurisdiction.
17. Consequently, being that these are garnishee proceedingsthisjudgement debtor has no role to play in determining whether this Court should order a third party who is in possession of the debtor’s money, to be released to the creditor particularly since the applicant neither has a pending appeal nor filed an application for stay of execution. I find succor in the recent Court of Appeal case of AMARAN V. VIRGIN ATLANTIC AIRWAYS (2018) JELR 34434 (CA) per YargataNimpar, JCA where she said that “the judgment debtor in garnishee proceedings, should not have been allowed to interject with those proceedings with other applications which are extraneous to the garnishee proceedings. A motion seeking to set aside orders nisi and a stay of execution are both extraneous to garnishee proceedings. The judgment debtor is merely to be served with the order nisi after which he has no role to play except if he desired to appeal after the order absolute is made”.The fact that the 2nd Judgment Debtor is an agency of the Government of Imois presumably sufficient reason for the Judgment Creditor to want to apply to attach any of the accounts owned by the State Government in satisfaction of the Judgment Debt. Besides, I concur with the Counsel for the Judgment Creditor that this applicant failed to place any other convincing material to establish otherwise that at the time the judgment of this Court was made in 2007, the 2nd Judgment Debtor was a limited liability company with a separate corporate status independent of the State Government of Imo.
18. It is again incontrovertible that the original suit filed by the deceased Claimant was against these Judgment Debtors jointly and or severally which entails that the share the liability of the outcome of the suit.
19. Besides, this Court had variously held that the accounts of the State Government may be attached for the purpose of recovering a judgment debt particularly where the judgment debtor is considered an agency, parastatal or ministry of the State Government. This position was equally illustrated in suit no NICN/OW/4M/2019 between KEN C.O. NJEMANZE (SAN) V. IMO STATE GOVERNMENT AND OTHERS as rightly observed and cited by learned Counsel for the Respondent. The Respondent’s submission that the State Government controls and manages, hires and recruits the employees, manages the financial dealings, and employs the board of the 2nd Judgment Debtor, was in any case never challenged by this Applicant. This in effect amounts to an admission which requires no further prove of. It is therefore safe to rely on this position and accept that as an agency of the State Government of Imo, the 3rd Judgment Debtor’s accounts can be attached for the purpose of recovering the judgment debt that was validly granted since 2012 by a competent Court of law.
20. Consequently, the Applicant’s application fails and the same is dismissed entirely.
21. These garnishee proceedings must continue with the determination of the fates of the various Garnishees’ affidavits filed before this Court.
Delivered in Owerri this 23rd day of March 2020.
HON. JUSTICE IBRAHIM SULEIMAN GALADIMA
NATIONAL INDUSTRIAL COURT OF NIGERIA