IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA.
SUIT NO. NICN/MKD/03M/2020
SUIT NO. NICN/MKD/17M/2020
DATE: 24TH JULY, 2020
1. BENUE STATE
2. BENUE STATE GOVERNMENT
3. BUREAU OF PENSION JUDGMENT DEBTORS/
4. BENUE STATE LOCAL GOVT. PENSIONS APPLICANTS
5. ATTORNEY- GENERAL & COMMISSIONER
FOR JUSTICE, MINISTRY OF JUSTICE
1. MR. ABU JAMES
2. MR. KWAGHBEE SWEN
3. AUDU MUSA DANLAMI
4. MR. AUDU ADANU SAMUEL
5. MRS. HELEN ANEFU
6. MR. DAVID S. DUNIYA JUDMGENT CREDITORS/RESPONDENTS
7. MR. GABRIEL OGWUCHE
8. MR. LUTSA TITUS NYIKAA
9. MRS. FLORENCE EJEH
10. MR. DAVID OGAH ACHA
11. MR. JOHN IKPEGWA O.
12. MR. JOSEPH SEGHER
13. DOKI MOSES ASEMABO
14. MR. MICHAEL EJEH OCHIGBO
15. MRS. OCHIGBO O. GLORY
S.O. Okpale for the Judgment Creditors/Applicants.
Aver Shima (ADCL) Benue State Ministry of Justice for the Judgment Debtors/Applicants.
E.C. Onjefu for the 1st and 4th Garnishees (First Bank and Fidelity Bank Plc)
A.M. Ewuga with F.O. Ohumuavbi for the 3rd Garnishee (UBA)
S.O. Akintoye for the interested party sought to be joined.
Thisis a ruling on the application for installmental payment dated and filed on 27Th February 2020 by the judgment debtors/Applicants and application for joiner dated 19/3/2020 and filed on 20/3/2020 by a party sought to be joined as an interested party.It is instructive to note that this Suit was consolidated with Suit No. NICN/MKD/17M/2020 upon oral application by counsel to the Judgment Debtors/Applicants on 23rd March 2020.
In the application for installmental payment, the Judgment Debtors/Applicants seek the following reliefs;
1. An order of the Honourable Court granting leave and allowing the Judgment Debtors/Applicants to pay the judgment sum of N132,475,241.82 (One Hundred & Thirty Two Million, Four Hundred & Seventy- Five Thousand, Two Hundred & Forty – One Naira Eighty Two kobo) only adjudged in favour of the Respondents by instalments of N200,000.00 (Two Hundred Thousand Naira) for each respondent monthly and would sustain a monthly payment of N100,000.00 (One Hundred Thousand Naira) only as gratuity and pension and until judgment is extinguished.
2. And for such further order (s) as the Honourable Court may deem fit to make in the circumstances of this case.
In support of the application is a Twenty- Four paragraph affidavit deposed to by one Abraham Shie, a senior administrative officer under the office of 4th Applicant. Exhibit MOJ A (copy of the judgment) and Exhibit MOJ B (Notice of Appeal) were attached to the supporting affidavit and a Written Address was also caused to accompany the application.
In opposing the application, the Judgment creditors/Respondents filed a thirteen paragraph counter affidavit on 20th March 2020 deposed to by Mathew A. Owuna, Esq, a Counsel in the law firm of Okpale S. Ojikpa& Associates.Exhibits 1, 2 and 3, were attached thereof. The counter affidavit was also accompanied by a written address.
The Judgment Debtors/Applicants thereafter filed a further and better affidavit of twelve paragraphs on 12th March 2020, Exhibit MOJ D was attached and a written address was caused to accompany the further affidavit.
In the written address on behalf of the Judgment Debtors/Applicants, a lone issue was formulated by Counsel to wit; “ Whether or not Applicants are entitled to the granting of this application for instalment payment. “
Counsel argued that by Order 49 Rules 11, 12, 13 and 14 of the Rules of this Court, the Honourable Court has unfettered powers and inherent jurisdiction to order and direct the payment of the judgment sum to be by instalments. The Applicants contended that by their affidavits before this court, they have shown that due to paucity of funds, they are unable to pay the judgment sum as contained in exhibit MOJ A at once.
It is also the contention of Counsel that the inabilityof the Applicants to pay the judgment sum is contained in paragraphs 5 to 24 of their affidavit and exhibit MOJ B.
Furthermore, Counsel submitted that it is trite law that an application of this nature operates as a stay of execution thus Counsel urged the court to stay execution of the judgment of this court contained in exhibit A.
Counsel then urged the court to grant the application.
On the other hand, the written address of the Judgment Creditors/Respondents contained one issue for determination as follows: “Whether in the light of the fact that the judgment debtors/applicants have sufficient funds as revealed by exhibits 1, 2 and 3 to liquidate the judgment debt, the judgment debtors/applicants have by the material they placed before the court made out a case to be entitled to pay the judgment debt by the instalments.”
Learned Counsel submitted that the nature of the claim of the Judgment Creditors/Respondents which is for pensions and gratuities need not be put to the expenses of litigation before they are paid. Therefore the Judgment Debtors/Applicants cannot be allowed to pay same by instalments. Counsel referred the Court to the cases of Central Bank of Nigeria V. Amao&Ors. (2015) 15 NWLR (pt. 1219) 271, Most Reverend Alfred A. Martins &Ors. V. Mrs. Catherine Kolawole (2011) LPELR- 4475 (CA) andAjao V. Permanent Secretary, Ministry of Economic Planning, Budget, Civil Service Pension Office & Anor. (2016) LPELR- 41407 (CA).
Counsel argued that by Exhibits 1, 2 and 3 annexed to their counter- affidavit, the garnishees have already deposed that the Judgment Debtors/Applicants have sufficient funds to satisfy the judgment sum. Curiously, the Applicants have not made any reference to the funds attached by the enrolled order nisi which was served on them on 26th February 2020. According to Counsel, the Applicants have not come to court with clean hands to seek the indulgence of the court when there is a sufficient fund to offset the judgment debt.
It is equally the submission of Counsel that it is trite law that a judgment creditor should not be deprived of reaping the fruits of his judgment. Therefore to successfully stay execution of judgment by payment by instalments, the Applicant must place all facts before the court and make frank and full disclosure why he is unable to pay the judgment debt in whole. Counsel relied on the cases of Isyaku V. Ugwu (2019) LPELR- 43117 (CA)and Livestock Feeds Plc V. Igbino Farms Ltd (2002) 5 NWLR (pt. 759) 118.
Counsel submitted that the affidavit of the Applicants failed and neglected to meet the requirements of full disclosure of income, assets and liabilities to weigh their inability to liquidate the judgment sum.
Counsel further submitted that the Applicants have failed to comply with the provisions of Order 49 Rules 14 (i), (ii), (iii) and 16 of the Rules of this Court. That is by disclosing the reasons for their inability to liquidate the judgment debt, the number of instalments or the amount to be paid perinstalment into the account of the court. That the essence of these requirements is to ensure that the courts do not indirectly deny the judgment creditor the benefits of his judgment by granting a long time for the judgment debtor to pay the judgment debt. On this Counsel cited the cases of A.C.B. Ltd. V. Ehiemue (1978) LPELR_ 24933 (SC) and Isyaku V. Ugwu (supra) at 15- 16.
Counsel therefore urged the court to refuse the application which a grant will take another eight years to liquidate.
In the written address in support of the further and better affidavit, Learned Counsel to the Judgment Debtors/Applicants argued that an application for payment by instalment of judgment debt in a garnishee proceeding operates as a form of stay of execution. Counsel on this cited the case of Livestock Feeds Plc. V. Igbino Farms Ltd (2002) 5 NWLR (pt. 759) 118.
Counsel further submitted that an applicant seeking a stay of execution has a duty to show clearly and convincingly that special and exceptional circumstances exist to weigh in his favour. What constitutes special and exceptional circumstances vary from case to case. Counsel referred to the case of Amadi V. Chukwu (2012) 52 NSCQR (pt. 1) 55.
Counsel finally urged the court to exercise its discretion in favour of the Judgment Debtors/Applicants.
Meanwhile, the prayers as contained in the application for joinder are as follows:-
“1. An order seeking leave of the Honourable Court for the Applicant to be joined as interested party to this garnishee proceedings.
2. An order of this Honourable Court joining the Applicant as interested party to this Garnishee Proceedings.
3. An order seeking leave of this Honourable Court for the interested party to file an affidavit to show cause and a written address in this garnishee proceedings.
4. An order deeming the interested party's affidavit to show cause and written address(filed separately) as properly filed. “
The grounds upon which the application was brought are also as follows:-
“1. The applicant is distinct and independent Agency of the Benue State Government with its corporate personality and perpetual succession capable of suing and being sued in its corporate name.
2. The applicant was not joined as a party to the substantive suit that led to this garnishee proceedings.
3. The Applicant has been adversely affected by an order of this Court made in this garnishee proceedings. “
The application is supported by 8 paragraph affidavit deposed to by Director, Finance and Accounts of the BSIRS. Applicant's affidavit to show cause was also attached to the application as Exhibit. Counsel's written was caused to accompany the application.
In the written address filed, Counsel raised the following issue for determination;
“Whether this motion is grantable in the circumstances of this case.”
Counsel cited section 3(2)(a) of the Benue State Internal Revenue Administration Law, 2015 and submitted that the applicant is a body corporate with perpetual succession and a common seal and may sue and be sued and the fact the Attorney General of the State was a party to the substantive suit does not preclude the applicant from being joined. Counsel cited the cases of A. G. Kano State V A. G. F. (2007) NWLR (Pt. 1029)164 and A. G. Anambra State V. A. G. F. (2007) ALL FWLR (Pt. 379) 1218.
Counsel finally referred to section 36 of the 1999 Constitution and Order 13 Rule 4 of the Rules of this Court to submit that the interest of the applicant has been adversely affected by the order Nisi and that the applicant has complied with the Rules of this Court.
In opposing the application, Counsel to the Judgment Creditors/Respondents while responding orally submitted that there is no provision for joiner of an interested party in the garnishee proceeding. That by the order of the court, it is the garnishee that is supposed to state that the money in its custody belongs to the 3rd party and not the applicant by virtue of section 86 and 87of the Sheriffs and Civil Process Act and Order 51 Rule 5 of the Rules of this Court. Arguing further, Counsel submitted that since the applicant is an agency of the Benue State Government, then by the provision of section 2 of the Benue State Proceedings Edict, Government includes all its agencies and parastatals. Citing the cases of National Association of Proprietors of Private Schools V. A. G. Rivers State (2018)LPELR 45952-CA, A. G. Kano V. AGF(2007)NWLR Pt. 1059 and Governor of Imo State V. Uche Ogo(2015) 11 CA Report.
Counsel finally urged the court to dismiss the application.
DECISION OF THE COURT
I have carefully gone through the processes filed by the learned counsel on behalf of the respective parties and considered their written submissions, the issues that I feel are suitable for determination are;
1. Whether in the circumstances of this case, the application for joiner is meritorious
2. whether in the circumstances of this case, the Judgment Debtors/Applicants have made out a case for payment of the
Judgment sum by instalment.
On issue one, it seems fairly settled that an interested party in a civil case is that person who is affected or likely to be affected or aggrieved or likely to be aggrieved by the proceedings. See A. G. Ekiti State V. Osho(2000) LPELR - 5370(CA).
And the test for determining whether or not an applicant is a person having interest in the matter is whether the person could have been joined as a party to the suit in the trial Court. See Tabansi-Okoye V. Chuba-Ikpeazu(2016)LPELR - 40329(CA).
The applicant in the grounds upon which its application was brought has stated that the applicant is distinct and independent Agency of the Benue State Government with its corporate personality and perpetual succession capable of suing and being sued in its corporate name and that the Applicant has been adversely affected by an Order of this court made in this garnishee proceedings.
It is worth stating that Garnishee proceeding is a mechanism of enforcement that is available to Judgment Creditor in money Judgments which he can apply to recover Judgment sum if the Judgment Creditor believes is in the custody of the 3rd party usually a bank. See, Purification Technique Nig. Ltd. V. A.G. Lagos State (2004) 9 NWLR pt. 879 at 665 and Agip Oil Company Ltd V. Peter Ogini (2011) 2 NWLR pt.1230.
The enforcement of judgment by way of garnishee is a special procedure that is sui generis. Generally, the case is between the Judgment Creditor and Garnishee so that Judgment Debtor is but a total stranger to the proceeding and ought not to be heard despite the fact that the Sheriff and Civil Process Act requires that they be served. See; the case of C.B.N. V. Interstellar Communication Ltd. (2018)ALLFWLR(pt.930)442 at 459 where in the Supreme Court held thus; “a Garnishee Proceeding is strictly between the Judgment Creditor and Garnishee who is indebted to the Judgment Debtor”.
The Supreme Court in the above case has also held as follows;
It is settled law that a Garnishee Proceeding is strictly between the Judgment Creditor and the Garnishee, who is indebted to the Judgment Debtor; that even when the Judgment Debtor is made a party to the suit, he can be seen only but not be heard; and that any court process filed by the Judgment Debtor will be abuse of court process bringing him in the light of meddlesome interloper.
Going by the above and considering the entire affidavit of the applicant in support of its application, I have not been able to see what interest the applicant sought to be joined in this suit has and how it was affected or aggrieved or likely to be affected or aggrieved by this proceeding.
In the circumstance, I find that the application filed by the party sought to be joined is strange as far as garnishee proceeding is concerned. The applicant has failed to show that the account sought to be attached belong to it. More so, the garnishees against whom the order Nisi was granted did not say or prove to the court by any documentary evidence that the account belongs to the applicant.
In the light of the above, I hold that the application lacks merit and is accordingly dismissed.
Coming to issue two, the Judgment Debtors seek the discretion of the court to allow them to pay the judgment sum by instalments until it is liquidated. Order 49 Rule 13 of the National Industrial Court (Civil Procedure) Rules 2017 gives an opportunity to the judgment debtor by application to request for payment of the judgment debt by instalments. However this is subject to the conditions as stated in Order 49 Rule 14.
Order 49 Rule 16 provides, “The court on hearing the parties may grant the application, if the judgment debtor satisfies the court by exhibiting such willingness and readiness by the payment of the first instalment at the hearing of the application”.
The provisions of Order 49 Rules 13, 14 and 16 of the rules of this court call for the exercise of the discretion of this court. A discretion of the court is said to have been exercised well judicially and judiciously when is based only on materials placed before the court and not on extraneous or whimsical considerations. The hallmark of this discretion by the court is to do substantial justice between the parties. See the case of Abayomi V. Attorney- General, Ondo State (2007) All FWLR (pt. 391) 1683.
The Judgment Debtors/Applicants have in their affidavit stated as follows;
“9. That the Applicants lodge an appeal against the said judgment and the grounds of appeal are herewith attached as exhibit MOJ B.
10. That the Applicants were ready to test the judgment of this Honourable Court on appeal, however, the late issuance of the exhibit MOJ B to them made it impossible to craft additional grounds to seek for leave of the court of appeal for the appeal to meet the requirement of the law.
14. That the Applicant in a bid to overcome the challenges above have put in place Benue State Pension Commission (PENCOM) to source for funds, advise and/or serve as a supervisory body to augment the efforts of government with the aim of facilitating the regular payment of gratuity and pension of retirees and/or death benefits.
16. That the monthly allocation from the 1st Applicant to the 2nd Applicant for the discharge of this statutory responsibility is in the line of about N20,000,000.00 monthly for gratuity and N255,000,000 for pensions.
17. That the 2nd Applicant is not financially buoyant and has indebtedness to contractors which amounts to the tune of over Hundred Billion Naira.
18. That further to the above paragraph the 2nd Applicant owes Local Government Staff ten months salaries while the staffs under the employ of the 2nd Applicant are owed five months’ salary in year 2017
19. That the Federal allocation and the internally generated revenue accruable to the 2nd Applicant is becoming lean and meagre from month to month and monies that come to 2nd Applicant must be shared among the Government apparatus for it to be running.
20. That the number of pensioners is rather on the increase on monthly basis and their entitlements on monthly basis as per gratuity and pension arrears as well as death benefits have accumulated to a tune of over N50 billion.
21. That the allocation of as paragraph 12 above from the 2nd Applicant to 4th Applicant is grossly inadequate to pay all the pensioners and offset the judgment sum of the Respondents at once.”
According to the Judgment Debtors/Applicants, these are the reasons that informed their application seeking to liquidate the judgment sum by instalment. The grant of an application of this nature is purely at the discretion of the court which has to be exercised judicially and Judiciously and whether the reasons adduced by the judgment Debtors/Applicants constitute special and exceptional circumstances to warrant the exercise of the court’s discretion in their favour depends on the credibility of the reasons so stated.
I observe that the reasons so advanced by the Applicants are not backed up or corroborated by any other evidence from the Applicants especially in the face of denial by the Respondents. Learned Counsel has also given reason of exhibit MOJ B which is a Notice of Appeal filed at the Court of Appeal, Makurdi division as one of the grounds to warrant a grant of the application. The law still remainsthe same that a Notice of Appeal does not operate as a stay in monetary judgments. Similarly the rules of this court have provided that certain requirements should be fulfilled by an Applicant seeking to stay a monetary judgment of the court.
The Judgment Creditors/Respondents have in paragraphs 4, 5, 6, 7 and 11 stated that the Judgment Debtors/Applicants have enough funds in the accounts with First Bank, United Bank for Africa, Fidelity Bank and Zenith Bank Plc to pay the judgment debt at once.
One of the old doctrines of equity says that he who comes to equity must come with clean hands.The Judgment Debtors/Applicants do not seem to come with clean hands when they seek to settle the Judgment Debt of N132, 241,082.00 by by paying N200, 000 to each of the judgment creditors and N100, 000 monthly until the Judgment sum is fully liquidated. This according to the Judgment creditors would take barely 8 1/2 years to liquidate the judgment debt. I dare say, this is unacceptable or unreasonable I would say.
It is worth remarking that a Judgment creditor is entitled to reap the fruits of his Judgment as that is the essence of litigation and it is therefore the duty of the court to ensure the successful party enjoys the success of his litigation and also ensure that the party seeking to deprive the successful party the fruits of his labour must show substantial reason why the court must grant the application. See the cases of University of Ilorin V. Adesina (2008) All FWLR(pt.400)709.
I note that the Judgment Debtors/Applicants have failed to exhibit their income, assets, expenditures and liabilities, or comply with Order 49 Rule 16 of the Rules of this Court by making any payment since the delivery of the judgment on 14th October 2019.
In the case of Okafor V. Nnaife (1987) 4 NWLR (pt.64)129 at 138, the Supreme held that;
"A court cannot do equity in the right manner unless there are sufficient facts disclosed in support of the eexercise of that sort of relief which is an appeal to the conscience of the court. Every court called upon to exercise its ddiscretion to order instalmental 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 amatter 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."
From the foregoing, I am therefore of the opinion that the Judgment Debtors/Applicants have failed to discharge the onus on them to show that they are financially incapacitated and constrained to pay the Judgment Debt save only by paying the sum of N200,000 or N100,000 monthly to the Judgment creditors until the judgment sum is fully liquidated. I find that the Judgment debtors can do more. However, taking judicial Notice of theCoronavirus pandemic that has engulfed not only the economyof the country which is now in recession but that of the whole world, I wish to exercise my discretion to make the following moderate orders;
1. That the Judgment debtors/Applicants shall pay the judgment creditors the sum N15,000,000 (Fifteen Million Naira) as down payment on or before the 31/8/2020.
2. That the Judgment debtors/Applicants shall also subsequently pay the Judgment creditors the sum of N10, 000,000 (Ten Million Naira) every month from 30/9/2020 until the judgment debt is fully liquidated.
3. That in the event of default to comply with the above orders, the whole or remaining judgment sum becomes automatically due and payable.
4. The garnishees are hereby discharged and the order Nisi made against them is vacated.
Ruling is entered accordingly.
HON. JUSTICE S.H. DANJIDDA