IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE I. S. GALADIMA.
DATE: 7th September 2020. SUIT NO: NICN/OW/35M/2020
WILLIAM OJO OBELE JUDGMENT CREDITORS
ABA SOUTH LOCAL GOVERNMENT COUNCIL -JUDGMENT DEBTOR
ZENITH BANK PLC GARNISHEES
UNION BANK PLC
IN RE: ABIA STATE PRIMARY HEALTH CARE
DEVELOPMENT AGENCY: APPLICANT
· J.E. OKODOGBE FOR THE APPLICANT/INTERESTED PARTY
· U.M. UKPABIO FOR THE JUDGMENT/CREDITOR.
1. On the 7/9/2020 while this court sat on vacation matters only, this applicant moved and argued its applications of 24/8/2020 which were brought by way of motion on notice as well as an affidavit of urgency in these post judgment/garnishee proceedings via its Counsel. The various applications specifically sought for the following orders.
a. An order extending the time which the applicant may apply to discharge and or to set aside the garnishee order nisi made on the 6th of July 2020 against its account number 1015908642 domiciled in Zenith Bank Plc and belonging to this applicant, Abia State Primary Health Care Development Agency.
b. An order of this Court discharging and or setting aside the garnishee order nisi made on the 6th of July 2020 against the account no 1015908642 domiciled in Zenith Bank PLC and belonging to the Applicant (Abia State Primary Health Care Development Agency).
c. N500,000.00 in damages against the Judgment Creditors as cost of these proceedings.
2. The said motion on notice is supported by an affidavit of 25 paragraphs and 3 exhibits lettered P1, P2 and P3 respectively by this applicant. The affidavit of urgency which was filed on the same 24/8/2020, contains 13 paragraphs duly deposed to by one UgommaObioma-Anosike which depose inter alia, for the need to determine this application urgently in view of the fact that the account attached in the garnishee proceedings is a salary account belonging to the applicant.
3. Learned counsel in arguing the said motion for the applicant, stated that this account belonged to a separate entity from the judgment debtor and as such, this court had ordered to be attached, the account of another legal entity which is not a party to this suit. Accordingly, this applicant which is the Abia State Primary Health Care Development Agency is distinct from the Aba South Local Government. He relied on the 1st of the 3 exhibits accompanying the application where in Exhibit P1 was a letter written by the garnishee bank informing this applicant that its account had been attached to be garnished in these proceedings. That by virtue of the law creating this applicant (as seen from Exhibit P2), Section 34 there stated that the applicant was created by the State for the purpose of meeting the Local Government’s health care needs. That in Exhibit P3, the attorney-general of the State had instructed the applicant to open an account for the purpose of the salaries of its staff, which was so done in at Zenith Bank in 2018.
4. Counsel was emphatic that the account was a salary account when questioned by this Court to establish where such evidence was adduced to convince this Court. He relied on paragraphs 8 and 9 of his affidavit in support. He argued also that this matter was urgent, and it requires this court to determine it during the vacation.
5. He stated orally while adopting the applicant’s processes on 7/9/2020, that the judgment creditor/respondent has not controverted any of the applicant’s depositions and evidences and as such, it must be deemed that he admitted all the depositions made in respect of this application. He further referred to the case of CBN V. EDET (2015) ALL FWLR (PART 768) 879 – RATIO 6 and finally craved this court’s indulgence to grant the prayers sought.
6. The respondent, in relying on his 14 paragraphed counter affidavit of 31/8/2020, adopted his written address and urged this court to dismiss the application. Learned counsel submitted that the account attached by these judgment creditors, belong to the judgment debtor. This is because the name used in exhibit P1 tendered by the applicant is Aba South Local Government Health Authority. From this therefore, there is clear evidence that the said account, which was attached, belonged to none other than the judgment debtor and so there was no reason not to proceed with these garnishee proceedings against the garnishees.
7. He argued that besides, Section 83 of the SCPA does not make any dichotomy on which account of the judgment debtor that can be attached in garnishee proceedings as it is immaterial whether the account belongs to the State Governor, a local government or any other agency of the government. And so once it is apparent that a judgment debtor owns any such accounts, the Court can proceed to make an order absolute in such matter. He said that this applicant has not filed an affidavit of cause as ordered by this Court and so it is even a contemptnor in this suit. He is thus not entitled to this equitable relief. He finally stated that the applicant is a stranger in these proceedings as it was the garnishee that was expected to file an affidavit of cause and not this applicant. The applicant can only present its position through the garnishee bank and not by filing this application simpliciter to set aside the garnishee order nisi of 6/7/2020. He urged that this application must be dismissed in the interest of justice. He finally concluded that sentiments and law are strange bedfellows and this court must not allow itself to be drenched by the claim that if this application is not granted, the applicant’s employees shall down tool and industrial harmony may not be guaranteed. He said the law must take its course.
8. In response on points of law, this applicant’s counsel stated that the 3 documents tendered were very important in determining this application and they show that the applicant has every right to be interested in the outcome of this suit. He relied on section 34 of the Abia State Primary Health Care Development Agency and Local Government Health Authority Law, 2015 tendered as exhibit P2 to state buttress his previous argument that the applicant is a separate entity from the judgment debtor. He urged this court to grant this application.
9. This Court gave a bench ruling at 12:30 pm.
10. I have considered the application made by the interested party/applicant and gone through the affidavits and exhibits attached for this court’s consideration. The crux of the applicant’s application is that the account number 1015908642 Zenith Bank PLC belongs to the Aba South Local Government Health Authority and not the judgment debtor which is Aba South Local Government. To buttress the point, the applicant’s counsel had exhibited the law establishing the applicant agency and tried to establish that being a separate entity from the judgment debtor, it shall be wrong to attach its bank account in these proceedings. The applicant has therefore filed this motion on notice to set aside the garnishee order nisi of 6/7/2020 against the said account as same does not belong to the judgment debtor and to determine this application urgently during this court’s vacation.
11. In response, the judgment creditors stated that this application is unwarranted since it is the garnishee that should have filed its affidavit to show cause and to explain who owns the account. They said having not yet filed any affidavit of cause by the garnishees, it will be presumptuous for this applicant to seek the reliefs sought as they lack such locus so to do. It was opined that the applicant is a meddlesome interloper and so this application must be dismissed with costs.
12. In reaction, the applicant stated that the account attached is the salary account belonging to the applicant and that if this order nisi is not set aside as a matter of urgency, the applicant’s employees who are health workers shall down tools and this will therefore result in hardships and so it is expedient for this court to consider and grant the application as a matter of grave urgency.
13. It occurred to me while making this ruling that the said account number 1015908042 Zenith Bank PLC which was attached by the order nisi of this court on 6/7/2020 and which is alleged to contain the salaries of the applicant’s/interested party’s employees, is alleged to contain the May 2020 salaries of the employees of the agency in question. Meanwhile, this order nisi was made in July 2020 whereas the account is said to contain May 2020 salaries. It is difficult to understand why this becomes an urgent application to determine now as whether an order absolute should be made against such account shall depend on whatever is contained in the garnishee bank’s affidavit of cause with respect to such account.
14. Besides, this applicant failed to even attach a certified system generated statement of account in respect of the account in contention which may have been used in determining the probability of the claim made by it and likely to have convinced this court of their genuineness.
15. It is necessary to point out that at the present stage of these proceedings, none of the garnishees is yet to file their affidavits of cause as ordered by this court on 6/7/2020. It is thus surprising – and even strange – that an application like this is made by a third party to set aside the garnishee order nisi attaching the said account which was validly made on that said date before this court’s vacation and which proceedings were adjourned till after resumption for consideration.
16. Indeed the golden rule is that all parties must be heard in a suit in order to ensure a fair hearing and trial based on the legal principles of audi alteram partem and nemo judex in causa sua. It is in this regard that Order 51 rule 1 (2) requires the garnishees to put up appearances by filing affidavits to show cause why the order nisi should not be made absolute. Of course, if the garnishee bank discloses that the account does not belong to the judgment debtor but to a third party, such third party shall only with the leave of this court, join in the proceedings and prove his claim or the court may summons such third party to appear to show such cause as is necessary for the just determination of the suit. This is as enjoined under Order 13 rules 4 and 17 (1) of the rules of this court 2017.
17. Also, by order 51 rule 6 (1) which is similar to section 88 of the SCPA, where a third party makes claim that the money sought to be attached does not belong to the judgment debtor, he may apply for leave to be joined in the proceedings or the court may suo motu order him to be joined in. It is only after such third party is heard that the court may proceed to make its decision – see the case of ECOBANK NIG PLC V. ETTE AND ORS (2014) LPELR – 23444.
18. If this interested party seeks to be joined in these proceedings, it may do so by seeking this court’s leave to be so joined first and not for it to simply file an application as was done for the court to set aside its order nisi. So far, his applications before me are for leave to file out of time, an application to set aside the order nisi of 6/7/2020 against the purported account belonging to it, an order to set aside the said order nisi with respect to that same account and an application to determine this motion urgently.
19. I do not see how these applications are grantable to this interested party applicant in this manner sought. He indeed lacks the locus required to file the said application to set aside the valid order of this court. The application made by motion on notice as well as that for urgency are hereby refused and same are accordingly dismissed with N100,000.00 cost to the judgment creditor/respondent.
20. The case is hereby adjourned to 20/10/2020 for further hearing in these proceedings.
21. This ruling applies in respect of the other similar applications filed by this applicant in suits numbers NICN/OW/03M/2020; NICN/OW/04M/2020; NICN/OW/35M/2020 and NICN/OW/36M/2020 save only that the cost of N100,000.00 is jointly awarded to the judgment creditors in respect of all the matters and not separately.
Delivered in Abuja this 7th day of September 2020.
Hon Justice I.S. Galadima