THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE UYO JUDICIAL DIVISION
HOLDEN AT UYO
BEFORE HIS LORDSHIP HON. JUSTICE M. A. NAMTARI
DATE: 23RD MARCH, 2020 SUIT NO: NICN/UY/46/2019
BAR. POLYCARP L. AFANGIDE …… JUDGMENT/CREDITOR/RESPONDENT
1. AKWA IBOM STATE CIVIL SERVICE
2. AKWA IBOM STATE GOVERNMENT
3. THE ATTORNEY GENERAL AND JUDGMENT/DEBTORS/APPLICANTS
COMMISSIONER OF JUSTICE,
AKWA IBOM STATE
1. ECOBANK NIGERIA LTD
2. FIRST BANK NIGERIA LTD GARNISHEE
ANGELA MICK-AKPABIO - JUDGMENT/DEBTORS/APPLICANTS
U. D. ITAT- JUDGMENT/CREDITOR/RESPONDENT
On 28thMay, 2015, judgment was entered in favour of the Judgment/Creditor/Respondent as one of the Claimant in Suit No. NICN/CA/94/2013 per E. N. Agbakoba, J in the following terms:
1. It is hereby declared that the compulsory retirement of the Claimants, whose employment are statutorily flavoured under the guise of reorganisation is wrongful, unconstitutional, a breach of the provisions of the extant Public Service Rules of Akwa Ibom State (2010 Edition), null and void and of no effect.
2. That the letter of compulsory retirement of each of the Claimants nos. AKC/S/0072/S.3/VOL. H/343, AKC/S/0072/S.3/VOL. H/436, AKC/S/0072/S.3/VOL. H/432 and AKC/S/0072/S.3/VOL. H/428 all dated 14th February, 2013 are hereby nullified.
3. The 1st, 2nd and 4thClaimants are reinstated into the Civil Service of Akwa Ibom State immediately as Chief State Counsel, the 3rd Claimant is reinstated into the Akwa Ibom State Civil Service as Principal State Counsel with all their attendant rights, previleges in their grade levels without loss of seniority.
4. The Defendants are hereby ordered to pay all the Claimants their entitlements, emoluments and/or arrears from 14th February, 2013 when the Claimants were wrongfully retired until their due and rightful retirement.
5. Cost of N50,000.00 per Claimant is ordered to be paid by the Defendants to the Claimants within 60 days from the date of this judgment.
On the 24th October, 2019, the Judgment/Creditor filed a motion ex-parte for leave to bring Garnishee proceedings to enforce the judgment in Suit No. NICN/CA/94/2013. On the 6thNovember, 2019, this court granted the Judgment Creditor/Respondent an Order Nisi attaching the sum of
N6,658,162.72k (Six Million, Six Hundred and Fifty Eight Thousand, One Hundred and Sixty-two Naira Seventy-Two kobo) and the cost of action in the sum N50,000.00 (Fifty Thousand Naira Only) in account Nos. 5242012676 and 8036717130 with the 1st and 2ndGarnishees respectively.
Upon the receipt of this order nisi on the 18th November, 2019, the Judgment/Debtors/Applicants filed a Motion on Notice on 20th November, 2019 praying for an order setting aside the order nisi on the following grounds:
(a) That the Judgment/Creditor/Respondent mispresented and concealed the true facts of the judgment delivered on the 28th day of May, 2015 in respect of this case and as such the court lacked jurisdiction to make an order based on such misrepresentation.
(b) The Judgment/Creditor/Respondent failed to serve the Judgment/Debtors/Applicants with order nisi in this suit within time.
(c) Any further order(s) as this Honourable Court may deem fit to make in the circumstances.
In support of their application and in accordance with the rules of this Court, the Judgment/Debtors/Applicants filed 20 paragraphs affidavit with 6 Exhibits deposed to by Ms. IyahEseneowo, a Senior Administration Officer in the Akwa Ibom State Ministry of Justice, Uyo and a written Address settled by Angela Mick-Akpabioin support of the application.
In opposing the application and also in accordance with the rules of this court, the Judgment/Creditor/Respondenton the 27th November, 2019 filed a Counter-Affidavit of 48 paragraphs with 6 Exhibits deposed to by the Judgment/Creditor/Respondent and a Written Address settled by U. D. Itatof counsel.
With these processes in place, the parties adopted before this Court their respective written addresses as their arguments for and against this application on 27thFebruary, 2019.
Submission of Judgment/Debtors/Applicants
The Applicants formulated two (2) issues for determination:
(1) Whether the Court can set aside its Order obtained based on misrepresentation of facts.
(2) Whether the Court has the jurisdiction to entertain the suit when the Judgment Debtors/Applicants were not served with the Order nisi within time.
ISSUE 1: Whether the Court can set aside its order obtained based on misrepresentation of facts.
The Applicants submitted that the position of the Law is that where a Judgment or Order is obtained by fraud or misrepresentation of facts, the same Court is vested with the Jurisdiction to set it aside.Calling in support the cases of Vulcan Gases Ltd vs. G.F. Gasverwertung Ind. A-G (GIV) (2001) 9 NWLR Pt. 719 Pg 610; A.T. Ltd. vs. A.D.H. Ltd (2007) 15 NWLR Pt. 1056 Pg. 118 and Bessoy Ltd v. H.L (NIG) (2010) 4 NWLR Pt 1184 Pg 300, the Applicants enumerated the circumstances under which a Court can set aside its judgment obtained by, among others, fraud or deceit.
Applying the above principle to the facts of the instant case, the Applicants posited that the Court in Suit No. NICN/CA/94/2013 which the Judgment Creditor/Respondent is seeking to enforce did not order for the sum of
N6,658,162.72(Six Million, Six Hundred and Fifty Eight Thousand, One Hundred and Sixty-two Naira Seventy-Two kobo) to be paid to the Judgment Creditor. But the Judgment/ Creditor/Respondent in his Exparte Motion, applied for the said amount to be paid as the Judgment sum thereby giving the impression that the said sum is the Judgment debt ordered to be paid in Suit No. NICN/CA/94/2013. Another indication of misrepresentation was Exhibit E where the Judgment Creditor concealed the fact that he was owing the Judgment Debtors some money.
Under the circumstances, the Applicants found judicial support in the Court of Appeal case of Nigerian Breweries Plcvs. Chief WorhiDumuje& Anor (2016)8 NWLR Pt. 1515 pg. 536 at Pg 600, whereOgunwumiju, J.C.Aheld:
“After the service of a garnishee order nisi on a judgment debtor, he may convince the court by way of affidavit to discharge the order by proving, for example, that:
(a) the judgment leading to the garnishee proceedings was obtained by fraud; or
(b) the originating process of the main suit was not served; or
(c) the judgment sum sought to be enforced has been paid; or
(d) the judgment leading to the garnishee proceedings is vitiated by any other fact on which the trial court may exercise its power to set aside its own judgment.”
In light of the foregoing, the Applicants urged the court to set aside the said Order nisi made on 6thNovember 2019 for lack of Jurisdiction as it cannot enforce what was not in the Judgment of the trial Judge. By way of adumbration at the point of adoption of final address, the Applicants referred the court to the case of Gwede v. Delta State House of Assembly & Anor(2019) LPELR-47441(SC)to the effect that the judgment sum must be certain and located in the judgment.
ISSUE 2: Whether the Court has the jurisdiction to entertain the suit when the Judgment Debtors/Applicants were not served with the Order nisi within time.
On this issue, the Applicants started by quoting Section 83 (2) of the Sheriff and Civil Process Act Cap S6 Laws of the Federation of Nigeria 2004 thus:
“At least fourteen days before the day of hearing a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.”
To the Applicants, the implication of this is that a Garnishee and a Judgment Debtor must be served with a copy of the Order nisi at least 14 days before the hearing date, the failure of which robs the Court of the Jurisdiction to hear the case.This position receivedjudicial blessings in the cases of STB Ltd. vs. Contract Resources (Nig) (2005) 6 NWLR Pt.708 page 115; NDIC vs. Ifediegwu (2003) 1 NWLR Pt.800 page 218; Onyewu vs. KSMGI (2003) 10 NWLR Pt.827 page 40.The Applicants further gave the example of the Court of Appeal case of Cross River State Forestry Commission & Anor v. Muri EffiongArchibong Anwan &Ors (2012) LPELR-CA/C/14/2009, where the judgment debtors became aware of the garnishee proceedings when the garnishee Zenith Bank wrote them a letter intimating the judgment debtors of the proceedings. Flowing from this, it is the submission of the Applicants that in the instant case, the Order nisi was not served on the Judgment Debtors/Applicants within the 14 days before the date fixed for hearing in contravention of the mandatory provision of Section 83(2) of the Sheriffs and Civil Process Act.
The Applicants having noted that the judgment debtor is a necessary party who should be heard before the Court makes a garnishee Order absolute, submitted that service of the Order Nisi is in consonance with the Constitutional provision of fair hearing.
Finally, the Applicants submitted that failure to serve the Judgment Debtors/Applicants with the Order nisi less than fourteen days before the date fixed for the hearing of the matter has completely robbed this Court of the jurisdiction to hear the case.
Submission of Judgment/Creditor/Respondent
In opposing this application, the Respondent formulated three (3) issues for determination,to wit:
(i) Whether the Judgment Creditor/Respondent obtained the Order Nisi of this Honourable Court by any misrepresentation of facts?
(ii) Whether this Honourable Court has the Jurisdiction to entertain this suit as contended by the Judgment Debtors/Applicants that they were not served with the Order Nisi in this suit?
(iii) Whether this motion on notice of the Judgment Debtors/Applicant does not constitute an abuse of court‘s process?
Issue 1: “Whether the Judgment Creditor/Respondent obtained the Order Nisi of this Honourable Court by any misrepresentation of facts?”
To start with, the Respondent contended that he did not obtain the order nisi by any misrepresentation of facts at all as Applicants have not pointed out any misrepresentation of fact to justify the allegation. The Respondent then went on recount the antecedents of this case which for all intent and purpose is not germane to the issue at hand. What is relevant here is that the salaries, allowances, entitlements and emoluments as ordered by the judgment of 28th May, 2015 to be paid the Respondent remained unpaid leading to the disputed Garnishee Proceedings.
On the issue of
N6,658,162.72 which is the subject matter of the alleged misrepresentation, the Respondent submitted that there is no shred of misrepresentation of facts by the Respondent in this suit. To justify the amount of N6,658,162.72 claimed, the Respondent relied on Exhibits A, Al, B, B1 and B2 of counter-affidavit to the effect that it is the amount he is entitled as Assistant Director (Legal) on Salary Grade Level 15 from 1stof January, 2016.The Respondent also referred to the cases cited by the Applicants which enumerated the circumstances under which the Judgment of court can be set aside and submitted that the instant case is not affected by any of the enumerated circumstances.
Similarly, the Respondent referred to the case of Nigerian Breweries Plc. vs. Chief WorhiDumuje and Another (2016) 8 NWLR (pt. 1515) p. 536 at p. 600 and the dictum of Ogunwumiju, J.C.A. and submitted that the conditions therein are not applicable to the judgment sought to be enforced. The judgment in Suit No. N1CN/CA/94/2013 was not obtained by fraud, the main suit was served on the Judgment debtors/Applicants, the judgment sum has not been paid to the Judgment Creditor/Respondent and the garnishee proceedings is not vitiated by any fact on which the trial court can exercise its powers to set it aside at all. In the light of the foregoing, the court was urged to discountenance all the submissions of the Applicants and to dismiss the said motion on notice in its entirety.
ISSUE 2: Whether this Honourable court has the jurisdiction to entertain this suit as contended by the Judgment debtors/Applicants that they were not served with the Order Nisi in this suit?
The Respondent answered this question in the affirmative and posited that the Applicants were duly served with the order nisi in this suit and have even engaged a counsel who filed this motion on notice to dispute this suit. And to that extent, the Respondent has complied with the provisions of’ Section 83(2) of the Sheriffs and Civil Process Act, Cap. S.6 Laws of the Federation of Nigeria, 2004.In urging the court to discountenance the submissions of the Applicants, the Respondent submitted the judicial and statutory authorities cited by the Applicants are not applicable to this suit.
ISSUE 3: Whether this motion on notice of the Judgment Debtors/Applicants does not constitute an abuse of court’s process?
It is the submission of the Respondent that the motion on notice filed by the Applicants in this suit constitutes an abuse of court’s process.This is because by the provisions of Section 83(2) of the Sheriff and Civil Process Act Cap. S6 Laws of the Federation of Nigeria, 2004, the judgment debtor is entitled to he served with the Order Nisi in a garnishee proceedings and they have been so served. Again on the authority of Nigerian Breweries Plc vs. Dumuje (2016,) 8 NWLR (pt. 1515,) p. 536 at p. 600 paragraphs C-E, also cited by the Applicants, the Judgment Debtor is supposed to come by way of affidavit to discharge the order nisi and not by way of Motion as was done in this case.According to the Respondent it is also an abuse of court process for the Applicants to jettison the extant provisions of Sheriff and Civil Process Act Cap. S6 Laws of the Federation of Nigeria, 2004 and National Industrial Court Act and National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and bring this application pursuant to the inherent jurisdiction of this court. It is therefore the submission of the Respondent that inherent jurisdiction of a court is only exercisable where there is no enabling law or rule of court applicable and therefore cannot be exercised on the face of clear statutory provisions as in the instant case relying on Ariwolu vs. Adesina (2011) 2 NWLR (pt. 1231) p. 315 at p. 334 - 335 paragraphs H-A and Universal Oil Ltd. vs. N.D.I.C. (2008) 6 NWLR (pt. 1083) p. 254.
The Respondent also accused the Applicants of fraudulent misrepresentation of Facts in this case when they stated that the Judgment Creditor/Respondent in their Exhibit ‘E’ attached to their supporting affidavit is indebted to the Judgment Debtor/Respondents to the tune of
N885,615.24kinstead of the sum of N85,615.24k which is the actual indebtedness for the car loan to be deducted and recovered from the gratuity of the Respondent. On the basis of this, the court was invited to discountenance the facts in the supporting affidavit of the Applicants which are founded on fraudulent misrepresentation of facts.
Finally, the Respondent urged the court to dismiss this application for being incompetent as the Court lacks jurisdiction to entertain same.
Decision of the Court
I have examined the affidavit and counter affidavit and the arguments of both parties in this great divide and it is my considered opinion that the issue for determination is:
“Whether given the nature and circumstances of this proceedings the court can set aside the order nisi granted on the 6th November, 2019.”
In the consideration of the above issue, all the issues canvassed by the parties will surely come to the fore. The Applicants predicated the application for setting aside the order nisi on two (2) grounds, to wit, misrepresentation of facts and failure of the Respondent to serve them the order within time as stipulated by law. On his part, the Respondent not only debunked the two (2) grounds but also introduced the issue of the process being an abuse of process of this court. To my mind, although the issue of misrepresentation of facts is germane to the success or otherwise of this application, I must consider the other inconsequential issues raised by the parties for completeness.
One of such issues is the contention by the applicants that the Order nisi was not served on the Applicants within the 14 days before the date fixed for hearing in contravention of the mandatory provision of Section 83(2) of the Sheriffs and Civil Process Act thereby robbing this Court of the jurisdiction to hear the case. Given the factual situation in this case, the stand of the Applicants is untenable. In both the affidavit in support of this application and written address, the Applicants have stated that they were served with the order nisi but not within the time stipulated. Since the Applicants were duly served with the order and have even engaged a counsel who filed this motion on notice to set the order aside, I agree with the Respondent that it is too late in the day for the Applicant to bring up the issue. See the cases of Duke v. Akpabuyo (2005) 12 S.C.N.J. 293and particularly the dictum of I. T. Muhammad, J.S.C. (as he then was) in Vab Petroleum v. Momah (2013) 1 S.C.N.J. 313:
“In fact, the court below appreciated and reiterated the position of the law that service of process on counsel is as good service on a party to the proceedings and that proof of service is unnecessary where a defendant appears. The court however, erred, in my view, where it stated in this case that proof of service can only be established by an affidavit of service deposed to by a court below. The correct position of the law has repeatedly been stated by this court that it is straining the rule on proof of service to say that a defendant who filed a defence to the statement of claim, was not served the writ of summons because there was no bailiff's endorsement on the writ. See: Okesuyi v. Lawal (1991) 1 NWLR (Pt.176) 661 per Olatawura, JSC (of blessed memory).”
This issue is resolved against the Applicant.
Another is the issue of abuse of process raked up by the Respondent. The Respondent has given two (2) instances of the abuse of court process. These are the filing of motion to set aside the order nisi instead of merely filing affidavit and bringing the motion pursuant to the inherent jurisdiction of the court and not specific statutory provisions. There is no doubt that all courts enjoined to take a firm stand against the abuse of its process but before doing that, it must be established that there is an improper use of the processes of the court, in the first place. I cannot see any here. See C.B.N. v. Ahmed (2001) 5 S.C.N.J. 322. At worse, the issue of motion or affidavit can pass for mere irregularity which does not affect the merit of this application or prejudiced the Respondent and therefore can be waived in the interest of justice. See Duke v. Akpabuyo (2005) 12 S.C.N.J. 296, Abubakar v. Yar’Adua (2008) 1 S.C.N.J. 581 and Order 5, Rule 1 of the Rules of this court.
I cannot also fathom or understand how reliance on inherent jurisdiction of the court in bringing this application can be an abuse of court process. My understanding is that a court must be imbued with jurisdiction before it can exercise inherent jurisdiction. See N. S. Ngwuta, J.S.C. quoting with approval Lord Morris in Nwaogu v. Atuma (2012) 11 S.C.N.J. 194 thus:
"There can be no doubt that a Court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively within its jurisdiction. A Court must enjoy such powers in order to enforce its rules of practice and to suppress any abuse of its process and defeat any attempted thwarting of its process."
As wide and imprecise as the concept of abuse of court process is, one common feature of it which received judicial impetus is the improper use of the judicial process to interfere with the due administration of justice and to the irritation and annoyance of the other party. See Osun State v. N.C.P (2013) 3 S.C.N.J. 55. The failure to state under what rule of court, Act or law a motion is brought might well be discouraged and even be dubbed lazy but cannot be elevated to the status of abuse of court process. This issue is therefore resolved against the Respondent.
I now return to the vexed issue of whether the order nisi granted on the 6th November, 2019 by this can be set aside. A tour of the facts leading to this application will do no harm. On the 6thNovember, 2019, this court granted the Judgment Creditor/Respondent an Order Nisi attaching the sum of
N6,658,162.72 and the cost of action in the sum N50,000.00 (Fifty Thousand Naira Only) in accounts with the 1st and 2ndGarnishees. And upon the receipt of this order nisi, the Judgment/Debtors/Applicants filed an application to set aside the order nisi on the ground, mainly that the Judgment/Creditor/Respondent mispresented and concealed the true facts of the judgment delivered on the 28th day of May, 2015. In opposing the application, the Respondent refuted that he misrepresented or concealed facts and filed a counter affidavit Exhibits seeking to justify the amount of N6,658,162.72 claimed as his entitlement as Assistant Director (Legal) on Salary Grade Level 15 from 1stof January, 2016.
This state of affairs is what the Applicant termed misrepresentation or concealment enough to set aside the order nisi. Although I think these two words have negative connotations and does not really reflect the true situation in this case, the fact remains that the sum of
N6,658,162.72 sought to be garnisheed does not flow from the judgment of 28th May, 2015.
Garnishee proceeding by its nature is "sui generis" and a different mode of execution of judgment. The debt sought to be enforced must flow from or be located in the judgment that pronounced the debt. Not only that, where the computation of the money sought to be recovered was done unilaterally and not based on a specific order of Court, the court is bound to set the order nisi aside. This is because a garnishee order can only be made upon a liquidated sum certain. I have read the judgment of 28th May, 2015 and cannot find any nexus between the sum of
N6,658,162.72and the said judgment. The sum of N6,658,162.72was not alluded to anywhere in the judgment. Not in the introductory section. Not in the submissions of counsel section. Not in the operative part. And not even from the reliefs granted. I have therefore no hesitation in finding and holding that the judgment is mute, dormant and incapable of enforcement by garnishee proceedings. I am fortified in this regard by illuminating dicta of J. 1. Okoro, J.S.C. (Pp. 40-41, Paras. D-B) in Gwede v. Delta State House of Assembly & Anor(2019) LPELR-47441(SC).
"In this matter, the Appellant failed to make full and frank disclosure before the Federal High Court hearing the garnishee proceedings. First, the appellant represented that he is entitled to a judgment debt of N490,803,002.00 when, in actual fact, neither the Supreme Court's judgment of 24th October, 2014 nor the consequential order of 26th October, 2015 enumerated any specific sum of money the appellant was to be paid. This Court only ordered that Mr. Edoja Rufus Akpodiete, the removed member of the 1st Respondent should refund all the salaries and allowances he received while sitting as "member" of the 1st Respondent. One wonders how the Appellant was able to compute those sums of money by himself alone outside the judgment of the Court and tag it as the judgment sum. In garnishee proceedings, the judgment sum must be certain and can be located in the judgment. It is not to be left to conjecture."
See also the case of Fidelity Bank Plc v. Okwuowulu& Anor (2012) LPELR-8497 (CA).
It is therefore with a heavy heart that I hereby set aside the order nisi granted on the 6th day of November, 2019. The only options now left to the Respondent is to take a fresh action using the judgment of 28th May, 2015 as a pivot to prove and enforce his entitlements or to continue to wait till eternity for the Judgment Debtors to have a change of heart! That is very sad indeed.
Ruling is entered accordingly.
HON. JUSTICE M. A. NAMTARI