IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP:
HON. JUSTICE AUWAL IBRAHIM, PhD
DATE: 9th June, 2017 SUIT Number: NICN/ABK/02/2015
BETWEEN:
- BARR GILBERT MONDAY OKORIE
- HON. EMMA NWANKWO
- CHIEF ROGERS OKPANI
- MRS THERESA ANYIGOR===========Applicants/Judgment Creditors
AND
- EBONYI STATE GOVERNMENT
(Represented by Attorney-General of Ebonyi State)
- GOVERNOR OF EBONYI
STATE (Sued in his official capacity)
- EBONYI STATE HOUSE OF ASSEMBLY
- CHIEF JOSSY C. EZE
- MR NWEZE OFFOR
- MR BONIFACE MGBEBU
- HANS OFFIA ESQ.
- RT. HON. FIDELIS OGODO
- DR NNACHI OKORO=====================Judgment Debtors
(Jointly sued for themselves and others
purportedly appointed as Chairman and
Members of Ebonyi State Independent
Electoral Commission)
- FIRST BANK OF NIGERIA PLC
- GUARANTY TRUST BANK PLC============Garnishees.
REPRESENTATION:
F.S.N. Ogazi Esq. with P.I. Elechi Esq. appeared for the Claimants.
R.O.U. Nwaeze Esq. with Solomon Agbom Esq. appeared for the Respondents
RULING
This is a Post Judgment Proceeding initiated by the Judgment Creditors by way of a Motion Ex parte filed on 22nd of February, 2017. The Judgment Creditors sought for orders Nisi and Absolute brought pursuant to Section 83(1) of the Sheriff and Civil Process Act, Cap. S6, Laws of the Federal Republic of Nigeria, 2004, Order 51 Rules (1) and (2) of the National Industrial Court (Civil Procedure) Rules, 2017 and under the inherent powers of the Court. The motion ex parte was heard and determined by the court on 24th February, 2017. The relief of Garnishee Order Nisi was granted and the matter was adjourned for considering the application on the Garnishee Order Absolute. In accordance with the Rules, the Garnishees as well as the Judgment Debtors were put on notice for the proceedings at which the Garnishees were to show cause.
Thereafter the learned counsel for the Judgment Debtors filed a motion on notice dated 7/3/2017 and on 7th/3/2017, brought pursuant to Sections 84 and 87 of the Sheriffs and Civil Process Act; Order 8 Rules 8 and 11 of the Judgment (Enforcement) Rules and the inherent jurisdiction of the Court contained in Section 6(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).It prays the court for the following reliefs:
- AN ORDER of the Honourable Court that the Judgment delivered in Suit No. NICN/ABK/02/2015 on the 16th day of December, 2016 is unenforceable against the Defendants thereto in that the Claimants/Judgment Creditors were, before their dissolution, neither the staff of nor paid by the Defendants/Judgment Debtors.
- AN ORDER of this Honourable Court that the Judgment sum in Suit No. NICN/ABK/02/2015 could only be enforceable against the Ebonyi State Independent Electoral Commission, whose members the Claimants/Judgment Creditors were and which paid their salaries before their dissolution, if the Commission was joined as a party to the suit.
- AN ORDER of this Honourable Court setting aside the Garnishee Order nisi made in Suit No. NICN/ABK/02/2015 made by the Court on the 24th day of February, 2017 and striking out the Garnishee Order Absolute proceedings.
- FOR SUCH FURTHER OR OTHER ORDER OR ORDERS as the Honourable Court may deem fit in the circumstances of the matter.
The grounds of the application are as follows:
(1) The separate personality of the Ebonyi State Independent Electoral Commission is to draw a veil of incorporation over it.
(2) The court acted without jurisdiction in conducting and making the orders in the Garnishee proceedings commenced before it against the 1st to 3rd Defendants/Judgment Debtors/Applicants;
(3) Obtaining the prior consent of the Attorney- General under Section 84 of the Sheriffs and Civil Process Act before the commencement of Garnishee Proceedings is mandatory.
(4) The consent of the Attorney-General of Ebonyi State was never obtained to commence the garnishee proceedings against the funds standing to the credit of the Government of Ebonyi State in First Bank of Nigeria Plc (Account No. 2029057146), Guaranty Trust Bank (Account No. 0125733006) and United Bank of Africa Plc (Account No. 1001158077) or any other account or bank for that matter.
(5) This court is bound by Section 84 of the Sheriffs and Civil Process Act and plethora of superior court authorities that no judgment against the government can be enforced without the consent of the State Attorney-General.
(6) The Garnishee proceedings and orders of this court made on 24th day of February, 2017 are null and void.
In reaction to the motion on notice of the Judgment Debtors of 7/3/2017 referred to above, the Judgment Creditors counsel filed a notice of preliminary objection dated 23rd of March, 2014 on 24th of March, 2017 challenging the jurisdiction of the Honourable Court to hear the application. The grounds of the application are:
- That the Defendants/Judgment Debtors have no right under any law to file this process in the circumstances of the case.
- That the application is an abuse of court process.
The preliminary objection was accompanied with an affidavit and a written address. Thereafter the learned Judgment Debtors’ counsel filed a reply on points of law on 4th April, 2017.
Then on the 4th of April, 2017, the parties completed the adoption of the processes on the Judgment Debtors’ application as well as the preliminary objection of the learned counsel for the Judgment Debtors. The matter was then adjourned for Ruling. But on the 30th of May, 2017 when the court was to deliver its decision, the learned counsel for the Judgment Debtors stood up and submitted that the Ruling of the Court had been overtaken by force of law and cannot be delivered because that would tantamount to the Court exercising function in the same matter with the Court of Appeal since an Appeal has been filed. That since an appeal has been filed together with a motion for stay of execution and enforcement by any means, whether by way of Garnishee proceeding or other means of enforcement of Judgment of this Court, pending the determination of the Appeal before the Court of Appeal, proceedings should be stayed. That the motion on notice filed at the Court of Appeal is dated and filed 8/5/2017 and duly served on the Registrar of the Court for the attention of the Court. That looking at the motion so filed at the Court of Appeal and served on the court, any Ruling in this case will overreach the Court of Appeal. That the power of the Court of Appeal to take over acting powers and be exclusively seized of jurisdiction of any matter entered in the said Court of Appeal, derives from O 4. Rules 10 and 11 of the Court of Appeal Rules, 2016. This rule of Court has been given interpretation even up to Supreme Court. The most recent case is that of Dr Okezie Victor Ikpeazu vs Dr Samson Uchechukwu Ogah & Ors (2016) LPELR-40845. He also referred toShell Petroleum Development Company limited vs Oziowhor Monday Amadi & Ors (2011) LPELR-3204, Mohammed vs Olawuyi (1993) 4 NWLR (Pt. 287) p. 254. That all these cases are to the effect that as soon as an appeal is entered at the appellate court, it becomes fully seized of the matter and thence forward, the appellate becomes, dominuslitis, having full and complete dominion over all processes filed and ensuing proceedings to the exclusion of the lower court. This is to the exclusion of this Court. Therefore as the matter is now, the hands of the court are tied. And since the court is bound to act judicially and judiciously, it cannot do otherwise.
Learned counsel submitted further that the instant application is not about the arrest of the court’s judgment or Ruling. He then urged the court to grant their prayers by suspending its Ruling in this matter.
On his part the learned counsel for the Judgment Creditors submitted that the matter before the court is a post-judgment proceeding arising from the decision of the court. By that fact O. 47 r. 19 of the National Industrial Court (Civil Procedure) Rules, 2017 requires the giving of a new suit number to the post-judgment proceeding. That there is a distinction between the suit in which the judgment was given and the Garnishee Proceedings now initiated. That the two are distinct.
That failure to provide a new suit number does not vitiate the application for Garnishee proceedings. On the Appeal entered at the Court of Appeal, counsel submitted that it is not against the Garnishee Proceedings but rather against the Judgment which is no more pending before this Honourable Court. He further submitted that the Ruling which the Court reserved for today cannot be hindered by any application whatsoever. He referred to O. 47 Rule 14 of the National Industrial Court Rules, 2017. He then submitted that the application that the court should stay its proceedings is not proper. That there is no motion pending before this Honourable Court for the stay of its Garnishee Proceedings either from the Judgment Debtors or the Garnishees.
Learned counsel submitted further that the application of this nature cannot be made orally. The Rules of court do not permit the making of such applications orally. He contended further that mere submission that an Appeal has been entered without any proof thereof, is not sufficient for the court to rely on. He added that for the court to be convinced that an appeal has been entered in Court of Appeal, the provisions of Order 64 rule 8(3) and rule 13 of the National Industrial Court (Civil Procedure) Rules, 2017 must be complied with. He submitted that all the requirements of the Appeal have not been complied with. That the court has the power to deliver the Ruling pending.
He finally submitted that the Judgment of this Court is not appealable. This is because there is no issue of fair hearing raised in that suit. He then urged the court to proceed to deliver the Ruling, as it is not at all fettered.
Replying on point of law the learned Judgment Debtors’ counsel referred to O.14 Rule 20 of the National Industrial Court Rules, 2017. In Ikpeazu’s case, supra, there is a presumption that every appeal has been properly filed.
I have carefully considered the arguments and submissions of counsel on the oral application made by the learned counsel for the Judgment Debtors praying the court not to deliver its Ruling on the applications before it upon which processes have been adopted on the 4th of April, 2017. The issue to determine is whether the court should proceed to deliver the said Ruling or not.
Before resolving that issue let me first of all address the point of competence of the oral application made by the learned counsel for the Judgment Creditors. The learned counsel for the Judgment Creditors has argued that the application of the Judgment Debtors’ counsel is such that cannot be made orally. He submitted that the Rules of Court do not permit the making of the application orally. Learned counsel, however, did not refer the Honourable Court to any specific provision(s) of the Rules of this Honourable Court or any other legal authority to support the submission.
Having considered the submission of the learned Judgment Creditors’ counsel, the application of the learned Judgment Debtors’ counsel is basically one that seeks to stay the Court’s proceedings by stopping it from delivering its Ruling on the post-judgment application.A look at the provisions of Order 17 rule 1(4)(a) and (b) of the National Industrial Court (Civil Procedure) Rules, 2017 (NICR, 2017) shows that there is requirement for the filing of a motion on notice in all interlocutory applications and any other applications incidental to pending proceedings before the court that are not specifically provided for in the Rules. Since this is a post-judgment proceeding, it may not easily be categorized as an interlocutory proceeding. However, the fact that an application for Garnishee Proceeding has been initiated by the Judgment Creditors and the proceedings have commenced, wherein the Judgment Creditors, the Garnishees as well as the Judgment Debtors have filed and adopted their processes, only awaiting the court’s decision, it is not difficult to see that the Garnishee proceeding before the court is one that is on-going and the Judgment Debtors’ application for the court to stay its Ruling should be seen as an application incidental to pending proceedings before the court in accordance with the provisions of Order 17 rule 1(4)(b) of the NICR, 2017. This means that the application of the Judgment Debtors should have been brought by way of a motion on notice, as stipulated by the provisions of O. 17 r.1(4)(b) of the NICR, 2017. The provision states as follows:
(4) The following applications shall be brought by motion on notice-
(b) Other applications incidental to pending proceedings before the Court that are not specifically provided for in these rules.
Therefore the application of the learned counsel for the Judgment Debtors should have been made by motion on notice and not orally.
Furthermore, the learned counsel’s application is one that is aimed at stopping the Court from proceeding to deliver its decision in relation to the Garnishee proceeding and the objections to it. It is therefore, an application to stop the Ruling of the Court. In this regard, the Rules of this Honourable Court have made provision in such circumstance. See Order 47 rules 14, 15(1) and (2) of the NICR, 2017 which state as follows:
- Where a matter is fixed for judgment or ruling, no motion shall be allowed to prevent the Judge from delivering the Judgment, Order or Ruling.
- (1) Any motion filed in contravention of rule 14 of this Order may be incompetent and may not be allowed to be used to delay or prevent the delivery of the Judgment, Order or Ruling of the Court.
(2) A motion or an application which has been filed and an advance copy of same has been served on the respondent(s) within fourteen (14) days before the date fixed for the delivery of the Judgment and seven (7) days before the date for the delivery of the Ruling may be allowed and heard.
These two provisions of the Rules of this Honourable Court provide for an application by way of motion on notice, where an applicant intends to pray for any reliefs before the Court before the delivery of the Judgment, Ruling or Order of the Court. The learned counsel for the Judgment Debtors has argued that his application is so unique that he could make it orally. This is because, according to him, the Ruling has been overtaken by force of law. From his arguments and submissions, this appears to be predicated on the fact that the appeal by the Judgment Debtors to the Court of Appeal, Enugu Division, includes an application dated 8th May, 2017 on same date, praying for stay of execution of judgment of this court, the subject of this proceeding. The problem with learned counsel’s submission is that the requirement of making an application by way of motion on notice by the Rules of this Honourable Court is not without a purpose. The applicant must state his prayers on the motion paper and provide the grounds for same. He is equally expected to state all the facts in support of his application as well as to file all relevant documents to be used in support of same. See Order 17 rule 1(3) of the NICR, 2017.Doing that would now place the Respondents in a position to respond appropriately to issues placed before the court for determination. Having not done that therefore, the Judgment Debtors’ oral application has not been well rooted in law. This I so find and hold.
Nevertheless, by virtue of the provisions of Order 17 rule 12 (3) of the NICR, 2017 the court has the duty to hear and determine any motion or application filed before it and cannot refuse same only on the basis that it has been superseded or overtaken by another one. The court must hear the application in a manner that would ensure fair trial and hearing of the cause or matter. Therefore, I shall proceed to determine the oral application of the Judgment Debtors’ counsel to suspend the Ruling reserved in this case.
The case of the applicants is that the application has been overtaken by the Motion on notice filed before the Court of Appeal on the 8th of May, 2017. Their learned counsel has argued that the filing of this motion is good enough to stop this Honourable Court from proceeding to deliver its Ruling. He submitted that the appeal before the Court of Appeal has been entered at the Court of Appeal, Enugu. He relied on O.4 Rules 10 and 11 of the Court of Appeal Rules, 2016 and decisions in Dr Okezie Victor Ikpeazu vs Dr Samson Uchechukwu Ogah & Ors (2016) LPELR-40845 andShell Petroleum Development Company limited vs Oziowhor Monday Amadi & Ors (2011) LPELR-3204, Mohammed vs Olawuyi (1993) 4 NWLR (Pt. 287) p. 254.
The learned counsel for the Judgment Creditors opposed the application arguing that the proceedings now are different from those that the Judgment Debtors have appealed against. That this is a post-judgment proceeding and is distinct from the Judgment appealed against. He further argued that the court has the power to deliver its pending ruling as it is not fettered at all. On the submission of the Judgment Debtors that the Appeal before the Court of Appeal has been entered, learned Judgment Creditors’ counsel submitted that there is need for a clear proof of same. He added that the provisions of Order 64 rule 8(3) and 13 of the NICR, 2017 must be complied with by the Applicants before the Appeal can be said to have been entered.
Having considered all the arguments and submissions of counsel, the applicants contention that the court must stay its Ruling in this matter is not convincing enough. The application which this court has adjourned for Ruling was taken on the 4th day of April, 2017. The Judgment Debtors have not placed any clear material to show that as at that date of the hearing of the applications, the appeal had been entered. I must state that I agree entirely with the learned counsel for the Judgment debtors that where an appeal has been entered at the appellate court, the lower court must stay its proceedings. The authority of Dr Okezie vs Ogah, supra, relied upon by the Judgment debtors’ is quite apposite on the point. However, the fact of an appeal having been entered has to be clearly proved. It is the duty of the Judgment Debtors to prove that the Appeal has in fact been entered. I note that the Judgment debtors have served on the Registrar of Court (who filed same in the case file) a copy of their motion on notice filed at the Court of Appeal, Enugu Division. On the face of the said motion on notice before the Court of Appeal, the said Appeal has been stated to have Appeal Number CA/E/230/2017. There is nothing before the Court, however, to show that this was the position as at the time the court heard the applications on the 4th of April, 2017. In other words there is nothing to show that the Appeal had been entered as at the time the application was heard on the 4th of April, 2017.
