IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA
Before His Lordship:-
HON. JUSTICE E.D. E ISELE – JUDGE
DATE: 6th March, 2017 –NICN/ABJ/237M/2016
BETWEEN
ABDULRAHMAN ABDULLAHI – Judgment Creditor/Applicant
AND
- H. A. HOMES LIMITED– Judgment Debtor
- STERLING BANK PLC
- HERITAGE BANK PLC – Garnishees
- ZENITH BANK PLC
REPRESENTATION:Parties absent. U.I. Okwori for the Judgment Creditor/Respondent.
RULING
On the 22nd of February 2016, this Court gave judgment in the following terms after holding that the Claimant judgment Creditor’s employment was properly determined. The Defendant was however ordered to compute and pay the Claimant his leave allowance for 2013 and the Claimant’s salary and allowances per claim 8.
The upshot of this judgment was that it was declared that the Defendant’s refusal to pay the Claimants salaries of June, July, August, September, and October 2013 was wrongful, unwarranted and unlawful. On the first head of claim.
As to the 2nd head of claim it was declared that the Defendant’s refusal to pay the Claimant’s leave allowance for 2013 was wrongful, unwarranted and unlawful. By the 7th head of claim the Defendant Judgment Debtor was ordered to compute and pay the Claimant, his leave allowance forthwith the Defendant Judgment Debtor was also ordered to pay the Claimant his salary and allowance (less lawful deductions) withheld for the months of June, July, August, September and October 2013, assessed at N347,996.04 (Three Hundred and Forty-Seven Thousand, NineHundred and Ninety Six Naira, Four Kobo), per month.
By a motion exparte filed on the 21st June, 2016 the Judgment/Creditor Applicant sought an order nisi garnishing the total sum of N400,000.00(FourHundred Thousand Naira only) thereon from the date of the judgment (22nd February, 2016) being judgment sum belonging to the Judgment Debtor Respondents but which is presently with and in custody of the garnishee for the satisfaction of the sum of N400,000 (Four Hundred Thousand Naira only) being the judgment sum and cost entered in favour of the Judgment Creditor/Applicant by the Honourable Court on 22nd February 2016.
The garnishee were ordered to appear and show cause after the order nisi was granted. This was on the 11th July 2016 when the motion exparte was heard. On the 26thJuly, 2016 when the garnishee appeared to show cause. The Court per Esowe J made the order nisi absolute after Heritage Bank the 2nd garnishee had through counsel Chukuma Okaoroafor informed the Court that the 2nd Garnishee had the money to satisfy the Judgment sum. In support of this position was this fact that the 2nd Garnishee Applicant had in its affidavit to show cause filed on the 22nd July, 2016 averred that it had a sum standing in the credit of the Judgment Debtor sufficient to satisfy the garnishee sum of N400,000. It also worth noting that both 1st and 3rd garnishees in their affidavits to show cause both filed on the 22nd July 2016 all admitted having funds in the Credit of the Judgment Debtor to satisfy the Judgment Debt.
On the 25th of July 2016. The Judgment Debtor applicant filed a motion on notice pursuant to order 26 Rule 1 of the National Industrial Court Rules 2007 and Section 36(1) of the 1999 Constitution as amended seeking the following orders of Court.
1) An Order setting aside the Order Nisi made on the 11th July, 2006 garnishing the account of the Judgment Debtor (FHA Homes Ltd in suit No NICN/ABJ/105.2014) for being an abuse of the Court process
2) And any other order (s) as the Honourable Court may deem fit to make in the circumstance.
The grounds for seeking the above reliefs were:
- i)The substantive judgment was delivered on 22nd February, 2016 ordering the Applicant herein to pay the sum of N347,996.04 (Three Hundred and Forty Seven Thousand, Nine Hundred and Ninety Six Naira Four Kobo) to the Respondent, less lawful deduction.
- ii)That the Applicant complied according to the Order of Court in terms of the judgment.
iii) That the Respondent failed/refused and/or neglected to bring the facts of the Applicants having paid the judgment sum to the knowledge of the Honourable Court.
- iv)That there is no basis for the garnishee proceedings instituted by the Respondent in this suit.
- v)That the Respondent’s suit on garnishee is meant to annoy, irritate and to improperly invoke the jurisdiction of the Honourable Court
The motion was accompanied with an affidavit in support and a written address. In the affidavit it is averred that substantive judgment was delivered on the 22nd February, 2016 between the parties dismissing all the respondent’s claims except reliefs 1, 2, 7 and 8 in the writ of complaint which is to the effect that Applicant shall pay the sum of N347,996.04 less lawful deductions. Counsel for the Applicant in annexure 1 to the affidavit wrote a letter dated 7th May, 2016 to the effect that the
Claimant respondent was owing the sum of N2,464,514.66k to the Defendant Applicant. The letter went on to say: In view of the situation the Applicant would pay the Claimant Respondent’s outstanding claim pursuant to the said judgment through his account Number 103/1003676/220 with FHA Homes Limited by credit in his account Number with the judgment sum due to him that by this procedure, the Respondent’s liability to FHA Homes Limited will be reduced by the value of the judgment sum due to him. This was after the Defendant Applicant had on 30th June, 2016 complied with the terms of the judgment by crediting the account of the Respondent with the sum of N347,996.04 and the computed leave allowance of N46,745.97 making the outstanding debt of the Respondent to the Applicant as shown in annexure ‘B’ the respondent’s Statement of Account with the Applicant.
It is averred further that on the 9th of June 2016, the Applicant received Annexure C, a letter from the Respondent’s Solicitors objecting to the mode of payment.
The averment state further that on the 21st July, 2016, the Applicant through its company Secretary Legal Adviser sent a copy of his Honourable Court’s Order on it attaching the sum of N400,000.00 (Four Hundred Thousand Naira) in the garnishee banks.
In the written address counsel for the Applicant formulated a sole issue for determination: Whether this suit (NICN/ABJ/327M/2916) is an abuse of court process for failure refusal of the Respondent to place all facts and circumstances of this matter after the substantive judgment in suit No: NICN/ABJ/105/2014 before the Honourable Court.
The Respondent to the motion filed an affidavit in opposition to the application as well as a written address. In the written address the Respondent formulated this sole issue for determination: Whether this application is not overreaching and meant to render a competent judgment nugatory, and should be accordingly be dismissed with costs.
Counsel for the Applicant submits at 4.3 that there was no basis to invoke the Court’s jurisdiction vide garnishee proceedings to enforce the said judgment of the Court in view of the facts of the case as presented by the Applicant. That it was an abuse of court process to annoy and make the Applicant Expend money and to inconvenience it. Relying on the Supreme Court in MABAMUJE V. OTTO(2016) ALL FWLR part 828 at 883 and 898, para F-G the written address counsel for the Respondent submits that the Applicant by the application is trying to over reach and render a competent judgment nugatory. Counsel stated that the Applicant is trying to evade a judgment debt on the premise that there is a denied debt which is not the subject of any proceeding, and in respect of which there is no Court Order or even a pronouncement. Counsel submitted that granting the order sought will amount to overreaching and rendering nugatory a clear judgment in respect of which there is no dispute, and rendering it subject to some curious and dubious debt which has been denied, and in respect of which the purported judgment debtor is scared of going to Court. Counsel relied on the case of ODUJURLW V. WEMA BANK PLC (2010) MSJSC (PT11) 39where the Court stated that the Court does not, and will not make an order denying a Judgment Creditor the fruits of his judgment unless there are special and exceptional circumstances warranting such. Counsel stressed that in this case, doubtful claim for debt cannot be an exceptional circumstance which will take precedence over a judgment. He cited TSA IND. V. KEMA INVESTMENT LTD (2006) 3 MJSC 1, where the Court stated clearly that in determining a post judgment application, the Court must take into account the competing rights of the parties and should never be used as a substitute for obtaining a judgment which a party does not have.
In the reply on points of law counsel to the Applicant cited and relied on the case of WILLIAMS V WILLIAMS (2015) ALL FWLR part 782,1596 @ parasE.F where the Court said “Where a document is clear and unambiguous, the operative words in it should be given their ordinary grammatical meaning:.
On this counsel annexed a copy of the Judgment of the Court delivered on 22nd February 2016 from where he referred to prayer 8 where it is stated that the claimant shall makethe lawful deductions. The phrase being less lawful deductions. Counsel maintains that they complied with the Court Order by crediting the account of the Respondent. That it is this deduction the Respondent termed as illegal and counsel for the Respondent started raining abuses and words not worthy of coming from a Lawyer. He referred to paragraph 7(b) of the counter affidavit and cited Rule 26(1) of professional conduct.
Indeed I must state that the use of the words in paragraph 7(b) of the Respondents counter affidavit is quite deplorable. I do not need to restate them here in this ruling. It is however, sufficient to state here that apart from the paragraphs complained of, the respondent have averred at paragraph 7 C & D that the Applicant does not have any judgment against the Respondent in respect of the debt against which the judgment sum is purported to be paid in reduction. That stripped with all pretentions to the contrary, what the Applicant did, was to
pay money to herself when the Order of Court clearly is that the judgment sum be paid to the Judgment Creditor. That what the Applicant has purportedly done was to refuse to pay the judgment sum because they purported to have a lien over the said sum which they have no judgment in respect.
Counsel for the Applicant had in his reply on points of law referred to the judgment of the Court delivered on the 22nd of February 2016. At pages 17 and 18 of the judgment, I had emphasized that the Defendant did not file a counter claim, over the sum of N2,426,500.00 (Two Million, Four Hundred and Twenty –Six Thousand Five Hundred), and the Court went on to find that the Defendant was within its right to set up these figures with exhibits tendered. I hold here that was a mere finding and no more. The Defendant ought to have counter claimed and proved the outstanding debt, which it claimed against the Claimant Judgment Creditor which it did not do. As it stands, there is no valid Court Order out of the Judgment of 22nd February 2016 that it can base its claim for the amount mentioned above when there was no counter claim and set-off filed alongside the defence which was proved in the hearing against the defendant. It is in this view that I hold that the Application against the order nisi lacks merit.
The Application is also clearly belated as it was filed on the 25th of July, 2016, it sought to set aside an order nisi made on 11th July, 2016. On the following day, the 26th July 2016, when the motion was clearly not ripe for hearing. The Court with the concurrence of counsel present made the order nisi absolute.
It is the law that in post judgment proceedings the Court must take into consideration the competing rights of the parties and that the successful party has a right to the fruits of his judgment see TSA IND. V. KEMA INVESTMENT LTD (2006) 3, MJSC 1 and UNION BANK NIG. LTD V. ODUSOTE BOOKSTORE LTD 1994 LPELR Sc 171/1993.
The motion as filed on the 25th July 2016 is hereby dismissed for the above reasons.
Ruling is entered accordingly.
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HON. JUSTICE E. D. E. ISELE
JUDGE
