IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE R.B.HAASTRUP
DATE: 07 JULY, 2015 SUIT NO.NICN/MKD/13/2013
1. Peter Kulave Shagba
2. Korshima A. Nor
3. Ayila Terver
4. Roseline M. Abunku
5. Christopher T. Akume Judgement Creditors/Applicants
6. Dzua Hulugh
7. Veronica D. Anakaa
8. Aii Maashin
9. Margaret Orlaha
1. Benue State Universal
Basic Education Board
2. Gboko Local Government
Education Authority Judgement Debtors
3. The Attorney-General of
Benue State & Commissioner
4. Bureau for Local Government
& Chieftaincy Affairs.
First Bank of Nigeria Plc - Garnishee/Respondent
S.T. Deri, for judgement creditor/applicant.
The judgement creditor/applicant filed this motion ex-parte on 24th June, 2015; brought pursuant to section 83 (1) of the Sheriffs and Civil Process Act and Order 11 Rule 1 (1) of the National Industrial Court Rules, 2007. The applicants, by this motion are seeking the following reliefs:
1. An order nisi against the Garnishee restraining her from paying out the sum of money limited to N10, 862, 913 (Ten Million, Eight Hundred and Sixty Two Thousand, Nine Hundred and Thirteen Naira) only to the judgement debtors or an order directing the Garnishee to forthwith, pay into the registry of this court the above sum pending further directives after the hearing and determination of the motion on notice for Garnishee order absolute.
2. And for any such further order or orders this Honourable Court may deem fit under the circumstances of this case.
The motion is supported by a 22 paragraphed affidavit, deposed to by one Christopher T. Akume, a Civil Servant, residing in Gboko Local Government of Benue State; and a written address also, 24th June, 2015, with Exhibits A, B, & C annexed to the application in support.
Counsel to the judgement creditor/applicant, in his written address dated the 24th June, 2015, formulated an issue for determination by the court, whether the judgement creditors/applicants have made out a case for the grant of this application. Counsel in arguing this lone issue, relied on his counter affidavit, as well as Exhibits A, B, and C in support of this application.
It is the submission of counsel that, the judgement debtors can only be made to pay the judgement sum, only by means of garnishee proceedings against it, having refused to comply with the judgement of this court to pay the judgement creditors/applicants the judgement sum. To counsel, there is no pending order for stay of execution against this proceeding; that this court, by virtue of the Sheriff and Civil Process Act, Laws of the Federation of Nigeria, 2004, has the powers to grant the orders sought.
Counsel went on, that it is settled law that the effective date of judgement where it is monetary in nature, is from the date of judgement, unless the contrary is ordered by the court, relying on section 20 (1) of the Sheriff and Civil Process Act, Laws of the Federation of Nigeria 2004, and the case of Olatunji vs. Owena Bank Plc (2008) 1 KLR (Pt. 253) 1829.
It is the further submission of counsel, that the affidavit evidence in support of this application, discloses facts, that the judgement debtors have sufficient funds with the garnishee, capable of discharging the judgement sum as can be gleaned from the affidavit evidence. To counsel, having fulfilled the requirements to the grant of this application, they are thus entitled to same, urging the court to so hold, pending the determination of the motion on notice for garnishee order absolute, for the garnishee to show cause.
In considering this application, the issue before the Court is whether the judgement creditors/applicants have made out a case for the grant of this application.
The arguments advanced by counsel in his submissions as to what the law says regarding an application as the present one is not in doubt. Counsel in his submissions, relied heavily on Exhibits A, B, and C in support of this application. Exhibit A is a letter dated 28th January, 2015, to the Chairman, Benue State Universal Basic Education Board (SUBEB), and the 1st judgement debtor in this application, while Exhibit B is the said judgement of this court dated the 11th December, 2014; Exhibit C, also is a reminder letter dated 27th May, 2015 to 1st judgement debtor.
The judgement creditors/applicants, by their paragraphs 7 & 8 of the affidavit in support of their application, averred that they had served the judgement debtors with a demand letter as well as reminder of their intention to proceed with the enforcement of this judgement against the judgement debtors. This has led this court, to further peruse Exhibits A, and C, as to whether there is actually a proof of service of the said Exhibits on the judgement debtors as averred by the judgement creditors in their affidavit. I have found no such proof.
This judgement is a consent judgement, in which terms were settled and agreed upon by parties to the action; it is thus, in my candid view in the interest of justice that the judgement debtors are duly informed of the judgement creditors’ intention to proceed with the enforcement of the said judgement, for the judgement debtors’ failure to comply with same. This court is not convinced that Exhibits A & C (Notices of demand & reminder) were served on the judgement debtors, as averred by the applicants in their affidavit in support of this application. There is no such proof of service or acknowledgement, or any disclosures that efforts of service on the judgement debtors had proved abortive. In any event, the judgement creditors, having waited thus far from the date of judgement, which was 11th December, 2014, could as well do the needful for the enforcement of the said judgement. This is in the interest of justice.
I must point out here, that the above position taken by this court is not to be misrepresented to mean, that the judgement creditor is to put the judgement debtors on notice regarding the garnishee proceedings; this is certainly not the case. This court has only made reference to Exhibits A & C, relied upon by the applicants in support of this application, for which this court is not convinced about. It is in view of my reasoning above, that this application is accordingly refused, and consequently struck out.
Ruling is entered accordingly.
Hon. Justice R.B.Haastrup