IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE ENUGU JUDICIAL DIVISION
HOLDEN AT ENUGU
BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE
DATE: MONDAY 3RD JUNE 2019 SUIT NO.NICN/EN/12/2018
BETWEEN:
AMALGAMATED UNION OF PUBLIC SERVICE JUDGMENT
CORPORATIONS, CIVIL SERVICE TECHNICAL CREDITOR/
AND RECRETIONAL SERVICES EMPLOYEES APPLICANT
(AUPCTRE)
AND
ANAMBRA STATE GOVERNMENT
ANAMBRA STATE URBAN WATER
HOLDING CORPORATION (ASWAHC)
(SUED AS ANAMBRA STATE WATER CORPORATION
(ASWC) in the IAP Award in IAP/HB/3787 dated 26th JUDGMENT
March 2012) DEBTORS/
3. ANAMBRA STATE WASTE MANAGEMENT DEFENDANTS
AUTHORITY (ASWAMA)
(Sued as ANAMBRA STATE ENVIRONMENTAL
PROTECTION AGENCY (ANSEPA) in the IAP
Award in IAP/HB/3787 dated 26th March 2012)
APPEARANCES:
ABIODUN AKANNI FOR THE JUDGMNENT CREDITOR/APPLICANT.
COUNSEL TO THE JUDGMENT DEBTORS/RESPONDENTS ABSENT.
JUDGMENT
INTRODUCTION
This suit was instituted by originating motion, to enforce industrial arbitration award, pursuant to section 254C(4) of the 1999 Constitution [as altered]. Originating ex-parte motion for leave was filed on the 12th April 2018 to commence it. Leave was granted on the 26th April 2018. Subsequently, an Originating Motion on Notice was filed on 22nd May 2018, which was later amended, by filing Amended Motion on Notice, on 19th July 2018, praying the Court for the following reliefs:
AN ORDER of the Honorable Court for enforcement of the Industrial Arbitration Panel Award in trade dispute NO: IAP/HB/3787 dated 26th March 2012 and published as S.I. No. 57 at pages B1453-1454 in the Federal Republic of Nigeria Official Gazette No. 84 Vol. 99 Government Notice No. 253 dated 30th November, 2012, in this suit by directing the implementation of appropriate promotions and salary increment across board to workers of the 1st Judgment Debtor/Defendant in the 2nd Defendant’s employment as shown in the nominal roll with Staff Promotions as at 31st December 2017, attached as Exhibit G.
AN ORDER of the Honorable Court for enforcement of the Industrial Arbitration Panel Award in trade dispute NO: IAP/HB/3787 dated 26th March 2012 and published as S.I. No. 57 at pages B1453-1454 in the Federal Republic of Nigeria Official Gazette No. 84 Vol. 99 Government Notice No. 253 dated 30th November, 2012, in this suit by directing the implementation of appropriate promotions and salary increment across board to workers of the 1st Judgment Debtor/Defendant in the 3rd Defendant’s employment as shown in the nominal promotion and salary increment list as at 31st December 2017, attached as Exhibit H.
AN ORDER of the Honorable Court compelling the Judgment Debtors/Respondents’ to pay forthwith to workers of the 1st Defendant’s in the 2nd Defendant’s employment all outstanding salaries arrears, gratuities, pensions, entitlements/emoluments and other benefits in the sum of N2,402,019, 457.80 (Two Billion, Four Hundred and Two Million, Nineteen Thousand, Four Hundred and Fifty Seven Naira, Eighty Two Kobo) from 1st January 2012 – 31st December 2017 to satisfy the Industrial Arbitration Panel Award dated 26th March 2012.
AN ORDER of the Honorable Court compelling the Judgment Debtors/Defendants’ to pay forthwith to workers of the 1st Defendant in the 3rd Defendant’s employment all outstanding salaries arrears, gratuities, pensions, entitlements/emoluments and other benefits in the sum of N474,668, 353.00 (Four Hundred and Seventy Four Million, Six Hundred and Sixty Eight Thousand, Three Hundred and Fifty Three Naira) from January 2012 – 31st December 2017 to satisfy the Industrial Arbitration Panel Award dated 26th March 2012.
And for such order(s) as this Honorable Court deems fit to grant.
The Amended Motion on Notice was deemed as properly filed and served on 21st November 2018. The Motion on Notice was supported with an affidavit and a written address. There was also a sworn certificate filed on that same 19th July 2018 by the judgment creditor/applicant. The judgment debtors/respondents reacted by filing their counter affidavit on 22nd January 2019 and this was deemed properly filed and served on 23rd January 2019. The judgment creditor/applicant filed her reaction to the counter affidavit on 12th February 2019, together with Reply on Points of Law on the same date. Both were deemed properly filed and served 18th March 2019.
On the 18th March 2019, the originating application was heard. The learned counsel to the judgment creditor/applicant: ABIODUN AKANNI moved the application together with the Further Affidavit and the Reply on Points of Law and urged the Court to grant the application. The learned counsel however, informed the Court that, the judgment creditor/applicant had been able to enforce awards nos. A & B, via garnishee proceedings in year 2014 thus, remaining awards Nos. D & I, till date, therefore, necessitating this application. Thereafter, the learned counsel to the judgment debtors/respondents: OYINYE ANUMONYE relied on the counter affidavit of the judgment debtors/respondents and adopted the written address. The learned counsel drew attention to the fact that, there was an error, in the numbering of paragraphs of the counter affidavit in that, paragraph 7 was skipped while paragraphs 8-16 appeared twice, in terms of numbering, but not in repetition of contents. The learned counsel urged the Court to dismiss the application. In adumbration, the learned counsel submitted that, a look at reliefs 3 & 4, which showed claim for salaries arrears in conjunction with Exhibit A [the awards] at p. 13, would reveal that, the awards clearly granted N1.5Billion Naira as salaries, as at November 2011, in line with the claims before the IAP. The learned counsel submitted that, by the admission of the judgment creditor/applicant, that sum had been realised, via garnishee proceedings and award B on p. 13 had also been fully executed; hence, the IAP made no other monetary award.
The learned counsel submitted that, therefore, all other issues depended on conditions precedent been met, which have not been met, by the applicants. The learned counsel argued that, their deposition that, the appointment of the applicants had been terminated was never controverted; hence, the prayer to pay till 2017 from 2012 is asking for salaries to be paid for works not done The learned counsel also cited Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205 at 294, D-H, 295, A-E on the fact that, Exhibits G and N, which are public documents, ought to be certified and on what amounts to proper certification. Thereafter, the learned counsel ended his adumbration and the case adjourned to 28th May 2019 for judgment.
That is all about introductory aspects of the suit. Let me now summarise the written addresses of the parties. I shall start with that of the judgment creditor/applicant, since it was filed first, being address in support of the originating application.
SUMMARY OF ADDRESSES OF COUNSEL
A. Address in Support of the Application
ABIODUN AKANNI franked the written address in support of the Amended Motion on Notice. The learned counsel digested a lone issue for the determination of the suit, to wit:
Whether in the circumstances of this case, the Judgment Creditor is entitled to the orders sought in this application by invoking the enforcement jurisdiction of this Honourable Court pursuant to Sections 254C (1) (J) (I & ii) and (4) of the 1999 Constitution of the Federal Republic of Nigeria (as altered)?
The learned counsel quoted section 254C(4) of the 1999 Constitution [as altered] to show that, this Court has jurisdiction to entertain this suit and submitted that, in giving effect to the IAP’s awards, directing that promotions and appropriate salary increment be given the workers across board, the applicants herein, in calculating the workers’ entitlements has pleaded and particularised their monetary claims and arrears of salaries in paragraphs 21 and 22 of the supporting affidavit. The learned counsel cited Okpeta v. Nigerdock Nigeria Plc (Unreported judgment in Suit No. NIC/LA/27/2009 delivered February 9, 2012). The learned counsel submitted that, since parties are bound by the IAP’s awards, by virtue of sections 154(6)(a) of the Anambra State Water Supply and Sanitation Law 2015 [WSSL] and sections 30 and 31 of AWAMA Law, which mandate the 2nd and 3rd judgment debtors respectively, to take over the assets and liabilities of the defunct ANSWC and ANSEPA, the 2nd and 3rd judgment debtors effectively took over the liabilities of the defunct ANSWC and ANSEPA the very day, these laws were signed. The learned counsel cited Akinfolarin & Ors v. Akinnnola (1994) LPELR-345 (SC) on the presumption of validity of judgments of courts.
The learned counsel submitted that, a look at the affidavit in support of the application would show that, since the IAP’s awards in 2012, the workers had not been promoted nor paid their salary increments across board, while the retired workers had not been paid their pensions and gratuities. The learned counsel submitted that, as a result, the Court is bound to enforce the award, by granting this application. The learned counsel relied on Osakwe v. INEC & ORS (2005) 13 NWLR (Pt. 942) 442. The learned counsel argued that, the fact that, garnishee proceedings were employed to enforce the liquidated parts of the award does not mean, an abandonment of the unliquidated parts. The learned counsel cited and quoted Chemical & Non Metallic Products Senior Staff Association of Nigeria (CANMPASSAN) v. West African Glass Industry PLC (Unreported judgment of this Court delivered 5th February 2018 in Suit No. NICN/EN/27/2017 by J. Essien).
The learned counsel submitted that, assuming without conceding that, Exhibits attached were not originals or certified copies of the same, this does not make them untenable, as the law is that, copies of public documents attached as exhibits to affidavits need not be certified. On this, the learned counsel referred the Court to DG-Defence Industry Corporation of Nigeria & Anor v. Dinwabor & 30 ORS (2016) LPELR-41316 (CA) and quoted it profusely. The learned counsel urged the Court to grant the application. Thus, ended the address of the learned counsel. I shall now move to the written address of the judgment debtors in rebuttal.
B. Address of the Judgment Debtors/Respondents
ONYINYE ANUMONYE franked the written address of the judgment debtors/respondents in support of the counter affidavit and in opposition to the application. The learned counsel formulated two issues for the determination of the application, to wit:
Whether the Judgment Creditor/Applicant has the requisite locus to maintain this suit.
Whether the Judgment Creditor/Applicant is entitled to the reliefs sought based a [sic] clear appreciation of the processes filed in this suit. [sic]
In arguing issue 1, the learned counsel said, the interrelated issues of locus standi and cause of action must be discussed to tackle this issue and submitted that, this interrelationship was discussed by the Court of Appeal in Bob v. Akpan & Ors (2009) LPELR 8519 [sic]. The learned counsel submitted that, proper parties must be before the Court, to give it jurisdiction; and cited Ubom & Anor v. Anaka (1999) 6 NWLR (Pt. 605) CA; and Plateau State v. AG Federation (2006) 1 SC (Pt. 1) 64. The learned counsel submitted that, it is evident from paragraphs 12,13,14,15,18,19,20,21, and 22 of the affidavit in support of the application and reliefs 3 and 4 claimed that, the action essentially questions the propriety or otherwise of dismissal of some workers and the purported non-payment of salaries of the alleged workers. The learned counsel submitted further that, the law is trite that, issues of termination of appointments are personal, more so, when the sum due to the workers of the 2nd and 3rd judgment debtors/respondents, pursuant to the IAP’s awards had already been satisfied through the garnishee proceedings initiated by the judgment creditor/applicant. The learned counsel argued that, the union, which is the judgment creditor/applicant on record, could not exercise such personal rights, as it would lack locus.
The learned counsel submitted further that, the same thing, is applicable to reliefs 1 and 2 and paragraphs 11, 16, and 17 of the supporting affidavit, which asked the Court to order promotions and salary increment of her workers; and that, because the union, not being the individual workers, could not ask for these reliefs. The learned counsel cited UNIJOS v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478 to the effect that, promotions are based on merits, discretionary and not a right; and, on the satisfaction of conditions precedent like, filling of Aper Forms, passing exams, attending interviews etc.
The learned counsel argued that, the judgment creditor/applicant had not shown by its affidavit that, the IAP ordered that the promotions should be done without regard to the civil service rules or conditions governing the 2nd and 3rd judgment debtors/respondents. The learned counsel went on to argue that, once the issue of improper parties is raised, it must be determined before going into the merit of the substantive case; and cited Kanu & Anor v. Obtea & Ors (2015) and Amodu v. Ajobo (1995) 7 NWLR (Pt. 406) 170 to buttress his point. The learned counsel submitted that, as the rights to promotions and salary increment are the personal rights of the workers, the judgment creditors had no locus to bring this application; and as such, this Court lacks the vires to entertain this suit. The learned counsel cited NUC v. Alli (2014) 3 NWLR (Pt. 1393) 33; signed off on issue 1 and moved to issue 2.
On issue 2, the learned counsel argued that, the present suit is grossly incompetent, as the judgment creditor/applicant is acting mala fide. The learned counsel argued that, this is so because, the awards of the IAP are with respect to liquidated sum, spanning the period that ended November 2011, while the reliefs 3 and 4, being claimed now, as deposed in paragraph 21 and 22 of the supporting affidavit, are in respect of liquidated sum spanning a period from January 2012 to 31st December 2017, contrary to what was awarded by the IAP. The learned counsel submitted that, the judgment creditor/applicant acted mala fide by bringing this suit, under the guise of enforcing the award of the IAP of 26th March 2012, in spite of being acutely aware that, the reliefs being claimed now, were not parts of what were awarded; more so, when the awards had been fully realised, via garnishee proceedings. The learned counsel submitted that, a look at Exhibit A [the awards] of the supporting affidavit would show clearly that, the IAP awards were not a blanket cheque to the judgment creditor/applicant to compel the judgment debtors/respondents, to pay her members, any time she feels they are owed salaries. The learned counsel submitted that, the awards of the IAP, having been fully executed, are spent, leaving nothing more to execute; and cited Akaninwo v. NSIRIM (2008) ALL FWLR (Pt. 410) 610 at 659, B-C to buttress his point.
The learned counsel submitted that, further evidence of bad faith is shown in reliefs 5 and 6 deposed to in paragraphs 12-15 of the supporting affidavit, when the judgment creditor/applicant knew well that, the IAP did not grant anything like that. The learned counsel argued that, this is evident from the awards. The learned counsel further argued that, assuming that, with regard to relief 2, on promotion and salary increment, as deposed in paragraphs 10, 11, 16, and 17 of the supporting affidavit, could override the civil service rules, the judgment creditor/applicant must be adjudged to have waived her right to execute same. The learned submitted that, his reasoning is based on the premise that, as at when the garnishee proceedings were brought, to enforce parts of the alleged awards, the judgment creditor/applicant must have been aware of the said reliefs 1 and 2 and yet, decided to proceed with only a part; and as such, it must be deemed to have waived those alleged reliefs. On this, the learned counsel cited Ariori & Ors v. Elemo & Ors (1983) 1 SC 13 and The Exec. Of the Estate of Abacha v. Eke-Spiff & Ors (2009) 2-3 SC (Pt. H39) 97.
The learned counsel submitted that, the reliefs being claimed now, are not grantable because, the law is that, workers wrongly dismissed, are not entitled to wages – and cited Spring Bank Plc v. Babatunde (2012) 5 NWLR (Pt. 1292) 83 at 101, C-D. The learned counsel submitted that, in any case, the judgment creditor/applicant, having enforced parts of the IAP awards made in 2012 in 2014 and left the other parts unenforced and therefore made the judgment debtors to believe that, those have been waived, it is estopped from suddenly waking up, to enforce the abandoned parts because, equity does not aid the indolent. The learned counsel referred to paragraphs 4-11 and 16-23 and reliefs 1-6 to show that, the IAP awards were made in 2012 and that, parts were enforced in 2014. The learned counsel also argued that, these paragraphs and the reliefs are incompetent and amount to abuse of process because, Motion on Notice, is not one of the means of enforcing judgment of courts or arbitral awards. The learned counsel argued that, it is the Sheriffs and civil Process Act that provides for execution and that; it did not specify Motion on Notice, as one of the modes.
The learned counsel also argued that, the judgment creditor failed to substantiate reliefs 1 and 2, as they were not anchored on any legally admissible evidence and that, Exhibits G and H, which were relied on, and which are public documents, are not original, and are not certified, as required by law; and are therefore, inadmissible. The learned counsel cited section 90(1) of the Evidence Act 2011 and Abdullahi v. FRN (2016) LPELR-40101 (SC); Tabik Investment Ltd & Anor v. Guarantee Trust Bank Plc (2011) 6 MJSC (Pt. 1) 1, 21. The learned counsel argued that, with respect to reliefs 3 and 4 of the Amended Motion on Notice of 19th July 2018, these were never claimed before the IAP, as could be seen from Exhibit A of the Motion on Notice, which, he submitted indicates that, what were claimed were: outstanding salaries, pensions and leave allowances from 2000-2011. The learned counsel submitted that, arising from these, any further arrears of salaries, pensions and leave allowances after 2011 must be re-litigated before the IAP, with fresh award obtained, to be enforceable; as this Court, is not an arbitral tribunal to determine such fresh claims.
The learned counsel submitted that, the award made in (a) & (b) at p. 13 of Exhibit A indicated clearly that, what was awarded was the sum of N1,502,977,239.76, being the total liquidated sum as at November, 2011 for the workers in Anambra State Water Corporation and the sum of N711,229,471.00, being the total liquidated sum for workers in Anambra State Environmental Sanitation Agency, as at November 2011. The learned counsel argued that, the judgment creditor/applicant admitted, at paragraph 13 of Exhibit 1, being the Reply & Further and Better Affidavit filed 16th May 2017 and Exhibit AUP1 annexed thereto that, these sums had been fully realised. The learned counsel submitted that, therefore, the sums of N2,402,019,457.80 and N474,668,353.00 now being claimed, as reliefs 3 & 4, did not form parts of the IAP’s awards of 26th March 2012; and cannot therefore, be a subject matter of an application to enforce the awards. The learned counsel submitted further that, the instant application, being one for the enforcement of the arbitral awards of 12th March 2012, the claims in reliefs 3 & 4, which were not parts of the claims before IAP could not therefore, be enforced, as parts of the IAP’s awards.
The learned counsel submitted that, section 7(1)(c)(ii)(v) of the National Industrial Court Act 2006 only empowers this Court to enforce an award granted by Arbitral Panel and not to do the work of the Arbitral Panel by making awards by itself. The learned counsel submitted that, the jurisdiction of this Court had not been rightly activated in this instance; thus, making the Court to lack the vires to entertain the application. The learned counsel signed off of his address by finally urging the Court dismiss the suit.
Having finished with summarising the written address of the judgment debtors/respondents, I shall move to the Reply on Points of Law filed by the judgment creditor/applicant in response to the address of the judgment debtors/respondents.
C. Reply on Points of Law
ABIODUN AKANNI franked the Judgment Creditor/Applicant’s Reply on Points of Law. On issue 1 of the judgment debtors/respondents, the learned counsel submitted that, locus standi denotes the right of the judgment creditor/applicant to enforce IAP’s awards and cited section 6(6)(b) of the 1999 Constitution to support this assertion; and that, a judgment creditor, is one, who has civil right to enforce a judgment. The learned counsel submitted that, in view of the foregoing, the judgment creditor/applicant herein has locus. The learned counsel argued that, the facts of UNIJOS v. Ikegwuoha (2013) 9 NWLR (Pt. 1360) 478 and Kanu & Anor v. Obeta & Ors (2015) [without further details] cited by the learned counsel to the judgment debtors/respondents are distinguishable from those of this case, in that, this suit is to enforce an IAP’s award, and the judgment creditor/applicant, is the proper party to enforce the IAP’s award IAP/HB/3787.
The learned counsel argued that, contrary to paragraph 3.03 of the respondents’ written address, there is nothing in paragraphs 12-15, 18-22 that questions the rightness of dismissal of some workers and that, these paragraphs merely showed that, by virtue of the respondents laws making the award binding on the 2nd and 3rd respondents, as the legal representatives of the 2nd and 3rd judgment debtors in the said arbitral award, and thus, binding on the parties to whom the award relates, in accordance with section 13(4) of the Trade Disputes Act 2004 [TDA], in like manner, just like the applicant is the legal representative of its members. The learned counsel argued that, the respondents are not denying, being legal representative of the 2nd and 3rd respondents but merely said that, the awards had been fully executed, vide garnishee proceedings, in Suit No. NICN/ABJ/120/2013.
The learned counsel submitted that, the total amount recovered via garnishee in Suit No. NICN/ABJ/120/2013 had been computed as comprising the total net liquidated claims of the workers as at 2011; hence, it follows that, the judgment creditors, who paid the liquidated claims in 2014 via the garnishee, had not paid awards nos. (d) & (i), relating to the workers’ gratuities and pensions, ordered to be paid forthwith; and the promotions and salary increments ordered to be given to the workers across board. The learned counsel submitted that, the argument that, the judgment creditor/applicant had no right to fight for the personal rights and promotions of the workers is, misplaced, in that, every successful litigant had the right to enforcement of the judgment in his favour. The learned counsel cited Overseas Aviation Engineering (G.B.) Ltd [1963] 1 Ch. 24 at 39. The learned counsel submitted that, the judgment debtors are liable under the IAP’s awards to promote the judgment creditor/applicant’s members and that the judgment creditor therefore, has the locus to enforce same. The learned counsel cited Chemical & Non Metallic Products Senior Staff Association of Nigeria (CANMPASSAN) v. West African Glass Industry PLC [supra]. On the basis of the above, the learned counsel urged the Court to hold that; the judgment creditor/applicant has the locus to enforce the IAP’s awards. Thus, ended reply to issue 1 of the judgment debtors/respondents and the learned counsel moved to reply on issue 2 thereof.
On issue 2 as formulated by the learned counsel to the judgment debtors/respondents, the learned counsel submitted that, contrary to the argument in paragraphs 3.02-3.03 of the respondents’, what the judgment creditor/applicant sought to enforce here are, awards (d) & (i) of the IAP’s awards, which relate to payment of pensions and gratuities to the retired workers and granting them promotions across board and salary increments, since the judgment creditor refused to comply, after confirmation of the award in 2012. The learned counsel argued that, this is why reliefs 3 & 4 of the present suit were brought. The learned counsel submitted that, the mere fact that, the respondents agreed that, there are parts of the award that could be waived indicates that, they willfully refused to comply with those aspects of the awards. The learned counsel submitted that, the applicant could not be acting mala fide in exercising her constitutional right to enforce an award in her favour. On this, the learned counsel cited Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156, to the effect that, “a party cannot be said to be abusing the process of Court by exercising a constitutional right.” The learned counsel submitted that, therefore, there is no mala fide application before the Court, but an application to enforce those parts of the awards remaining to be executed.
The learned counsel submitted that, in the absence of appeal against the awards, the judgment debtors are bound to comply with the awards. The learned counsel argued that, the respondents’ attempts to seek to re-litigate the awards by subjecting it, now to the public civil service rules or suggesting that fresh arbitration must be done to enforce it or that, the workers were terminated, must fail. The learned counsel cited, once again, Chemical & Non Metallic Products Senior Staff Association of Nigeria (CANMPASSAN) v. West African Glass Industry PLC. The learned counsel replied the issue of inappropriate commencement of this suit, by saying it was competently commenced pursuant to Order 17, Rule (3)(3) and Order 47, Rule 29 of the NICN Rules 2017. The learned counsel cited unreported decision of this Court of 22nd February 2018 in NICN/EN/13/2017 [without further details] wherein, Order 17, Rule 3 and Order 47, Rule 29(2) were allegedly construed; and showed the rightness of commencing this suit as commenced. The learned counsel further submitted that, Exhibits G and H are legally admissible, by virtue of section 106(a)(ii) of the Evidence Act and that, they are primary evidence of the documents themselves, having been authorised and certified by the officer who made or produced them and by the heads of the concerned government departments.
The learned counsel argued that, at any rate, he who asserts must prove; and that, since the judgment creditor/applicant had produced the nominal promotion roll of its members, with the total arrears computed in Exhibits G and H, at the failure of the judgment debtors/respondents to so do for five years, the respondents are, by virtue of section 14(4) & (5) of the TDA guilty of a criminal offence, for failing to comply with the IAP’s awards. The learned counsel submitted that, the garnishee proceedings were for execution of the liquidated parts of the awards, while this application is, for enforcement of the unliquidated parts and that, the two could therefore not have been brought together, under the garnishee proceedings. The learned counsel submitted that, the issue of waiver or piecemeal execution could not arise in the instant case, nor could this application be termed abuse of process simply because, it is brought on the same award on which garnishee proceedings had been utilized because, the same subject matter could give rise to different suits. The learned counsel cited C.O.M. Inc. v. Cobham (2006) 15 NWLR (Pt. 1002) 283.
The learned counsel argued that, once the judgment debtors/respondents could not show that, it had complied with the awards (d) & (i) of the IAP, ordering promotion across board to the workers and paying them consequential incremental, the execution of another aspect of the awards, regarding earned arrears as at 2011, when the awards were made, could not be taken as satisfying the order to promote and pay the consequential incremental hence, the arguments of the learned counsel to the respondents, to the contrary, would be misplaced. The learned counsel argued that, to satisfy the Court that, the whole awards had been executed; the respondents must show to the Court when they ordered promotion and computed the consequential increments, after the awards. The learned counsel cited Chemical & Non Metallic Products Senior Staff Association of Nigeria (CANMPASSAN) v. West African Glass Industry PLC [supra] to show that, different procedures could be brought to enforce the same judgment. The learned counsel submitted that, by virtue of section 254C(1)(j)(I) & (ii) and (4) of the 1999 Constitution, in conjunction with section 14 of the NICA, this application is competent.
The learned counsel argued that, the diverse nature of the awards, which the IAP made, could be exemplified in Establishments Department Office of the Head of Civil Service v. Nigerian Union of Civil Service Typists, Stenographic and Allied Staff (1980-81) and Nigerian Bottling Co. Ltd v. National Union of Food, Beverage and Tobacco Employers (1992) NICLR 1. The learned counsel argued that, in the first, the court granted new grading structure for typists and created new terminal post for secretarial cadre, while in the second, the court granted 2.5 per cent increase in salaries, which was what the IAP awarded in the first instance. The learned counsel submitted that, it is therefore within the jurisdiction of this Court to grant the applicant’s reliefs, which are what the IAP had earlier awarded. Thus ended the reply on points of law and the end of the written addresses.
My next duty is to give my decision. In doing this, I wish to state, as it is done, that I have given very careful considerations to all the processes in the case file and noted those directly related to the issues to be decided herein. I have also carefully studied the affidavit in support of the motion, the counter affidavit and the further and better affidavit. These constitute the evidence in this suit. I have also most painstakingly digested the written addresses and adumbrations of the learned counsel to the parties, as ably demonstrated in my summary of the addresses above. I have also carefully noted and studied the germane authorities cited by counsel and the issues on which they were cited alongside the relevant facts of the case. Off to my decision I go.
COURT’S DECISION
I have carefully studied the issues formulated by the learned counsel to the parties, and I found that, the lone issue formulated by the learned counsel to the judgment creditor/applicant is sufficient to resolve this dispute. I therefore adopt it. The learned counsel to the judgment debtors/respondents raised the issue of lack of locus standi, waiver, complete satisfaction of the judgment debts, mala fide of the application, its inappropriateness/incompetency and the reliefs now claimed, not awarded by the IAP or related to or derived from any award by the IAP.
The learned counsel to the respondents has also argued that, the IAP did not award anything relating to the present claims of the judgment creditor/applicant and that, the judgment creditor/applicant had realised all that the IAP granted through the garnishee proceedings she earlier brought. The learned counsel to the judgment debtors/respondents submitted that, for this reason, the application was brought mala fide. The learned judgment debtors’ counsel also argued that, workers dismissed are not entitled to wages.
I should deal with the issue of what exactly the IAP granted first. But let me observe, before going into the issue proper, that, in the 2nd paragraph 27 [there are two paragraphs 27], the judgment debtors/respondents deposed to the fact that, the judgment creditor/applicant had earlier brought similar application like this, in Suit No. NICN/EN/13/2017 but, in which the 2nd judgment debtor/respondent on record, was excluded, and that, it was struck out. I have combed the whole gamut of the counter affidavit and could not find this said judgment exhibited. What is not before me, I cannot make any finding based on it. To do such would amount to engaging in speculation, which a court of law lacks jurisdiction to do. Let me observe too, that a previous suit was struck out, would not ordinarily prevent its being refiled. To ‘strike out’, means, not decided on merit; and liable to be refiled on correction of the technical defect for which, it was struck out. That is that for my observation, as stated above. Let me now go properly into the issue of what the IAP actually awarded.
I found Exhibit B germane in this regard. Exhibit B of the affidavit in support is the Gazette of Confirmation of Award 2012 involving the parties to this suit. The relevant pages are p. B1453-B1454. Under “Terms of Award” therein, it was clearly stated that:
“Based on the findings above we award as follows:
We award to the First Party the sum of N1,502,997,239.76 being the total net liquidation claim as at November, 2011 for the Anambra State Water Corporation.
We award to the First Party the sum of N711,229,471.00 being the total liquidation claim as at November 2011 for the Anambra State Environmental Protection Agency.
…
We award payments of Pension and Gratuity to retired workers of Anambra State Water Corporation and Anambra State Environmental Protection Agency forthwith.
…
…
…
…
We direct and order Anambra State Government to effect the appropriate promotions and salary increment across board to all its workers in Anambra State Water Corporation and Anambra State Environmental Agency…”
A close perusal of reliefs 1-4 of this application would show clearly that, they are offshoots of awards (d) & (i) of the IAP’s awards or consequential to them, as quoted above. I have also checked Exhibit D of paragraph 9 of the affidavit in support: that is, the certified true copy of the garnishee proceedings, by which parts of the awards of the IAP were executed. I found that, truly, as stated in paragraphs 10 & 11 of the affidavit in support, only awards A & B of the IAP’s awards, were enforced by the garnishee proceedings, leaving out those in D & I, being sought to be enforced now. I have checked too, the counter affidavit of the respondents and found that, the germane paragraphs 9, 10 & 11 of the affidavit in support of the application were not effectively denied in paragraph 4 of the counter affidavit thus, admitting them – see Adelaja & Ors. v. Alade & Anor. (1999) LPELR-109 (SC) 17, para. G. This is because, general and non-specific denial amounts to, no denial.
Apart from the general statement that these paragraphs, amongst others, were denied, nothing more is said about them throughout the later gamut of the counter affidavit. In all the paragraphs of the counter affidavit, nothing was said about the earned increment from the promotion ordered by the IAP; and those allegedly retired and paid their terminal benefits. Nothing was attached to show they were actually paid off; and the applicant denied the alleged payment, in her further and better affidavit. The certified true copy of the garnishee proceedings is not challenged, as not authentic and neither did the respondents exhibit another one, to counter the contents. A document speaks for itself. I have combed the document and found that, it spoke what the learned counsel to the judgment creditor/applicant attributed to it. What is not correct in Exhibit D or denied about Exhibit D is not stated.
More so, at page 6 of the certified true copy of the judgment of the IAP in this suit [Exhibit A of the supporting affidavit], issue (c) thereof stated: “Whether the refusal to promote the affected workers since 2002 or give them salary increment since 2006 is not an act of victimization.” The above issue provided the terra firma for and anchored firmly awards (d) & (i) granted by the IAP. It also shows that, awards (d) & (i) are not part of awards (a) & (b), which had been executed. The award was made on 26th March 2012 and confirmed via Exhibit B on 10th October 2012 thus, meaning that, the workers became entitled to promotion since 2002 and the consequential increment from that date, to, at the very least, when the confirmation was made on 10th October 2012. And that is, if all the workers were sacked after the confirmation; and if not, till they were sacked or retired. To effectively deny the entitlement of the workers being claimed now, the judgment debtors must show, when exactly, the workers were allegedly retired, what exactly was allegedly paid them, and that, these payments included increments arising from promotions across board from 2002, as decreed by the IAP. It is incontestable that promotion is all about salary increment.
So, the arguments that, the IAP did not make any award relating to the reliefs being claimed now, is highly erroneous and cannot stand. This argument is therefore invalid. It is clear that, by bringing an application to enforce parts of awards yet to be executed, the applicant could not have been acting mala fide. I therefore hold that, the judgment creditor/applicant herein, acted bona fide in bringing this application. Whether or not the application is competent, is another thing, but definitely, it is not brought mala fide, but brought bona fide. I am also of the view, arising from the foregoing that, issue of workers dismissed, not having right to salaries does not arise in this case. The IAP granted pension and gratuities and promotion and increment across board to these workers. The simple implication is that, they must have been due for the promotion, and not promoted, which the IAP found unjust, and ordered rectification accordingly. The IAP could not have ordered unearned promotions and increment, or promotion and increment, to be earned in the future. It only ordered promotion and increment that is due and earned.
Hence, even if they were terminated immediately after the IAP award, they must have been due for the increments arising from the earned promotions and for those that had retired, earned retirements benefits. It would appear that, the retirement benefits and promotion increments in issue are both retroactive and prospective. Retroactive from the date it became due and prospective to the date of implementation or the date of retirement/ termination, whichever is earlier. So, the argument of the learned counsel to the judgment debtors/respondents on this count is, logically unsellable; and is hereby dismissed. If the judgment debtors/respondents is of the view that, the judgment creditor/applicant claimed for any promotion increment in excess amount after the termination/retirement, it is their duty to show when the workers were terminated/retired and the amount in excess; and not that, the workers are not entitled to the award made in their favour, by the IAP: such is for appeal; and cannot form the basis of any objection against the enforcement of the awards of the IAP, in this instance; and I so hold. Be that as it may, I would leave it at that, and move to the other preliminary objections raised against the suit.
I take the issue of locus first. This is because, the issue of locus is, one to be raised at the inception of an action. Besides, I cannot find how the learned counsel to the respondents can justify arguments that a trade union that fought a case at the IAP and won, would lack jurisdiction to enforce the awards of the IAP in its favour, on the frivolous ground that, the trade union lacks locus because, the issues involved are one that could only be brought by the individual members of the union in their individual capacities, as workers. If the learned counsel to the respondents wishes to pursue this line of argument, let him approach the appellate court to the IAP, which gave the award in issue because, in essence, this argument is a challenge to the award of the IAP; and an appeal must be lodged against the award before the respondent can pursue an argument only appropriate for appeal. Having failed to lodge an appeal, the decision of the IAP and the awards cannot, therefore, be questioned, at the point of execution, on a point that properly belongs to appeal. The only duty of this Court by virtue of section 254C-(4) of the 1999 Constitution, is to presume the validity of the awards and enforce them – Purification Witt and Busch Limited v. Dale Power Systems Plc (2007) LPELR-3499 (SC) 23-24, paras. G-C.
I come to the issue of waiver. I cannot find how waiver applies in this occasion. Doctrine of waiver applies, where a person consciously abandons a right or could be deemed to have done so – see Olue & Ors. v. Enenwali & Ors [1976) LPELR – 2612 (SC) 15, paras. C – E, wherein the Supreme Court expatiated on the nature of waiver:
“In answering that question, we ought, in my view to act upon the principle laid down by Lord Romilly M.R. in Vyvyan v. Vyvyan, (30, Beav. 65, at 74) in these words: Waiver or acquiescence, like election, presupposes that the person to be bound is fully cognizant of his rights, and that being so, he neglects to enforce them, or chooses one benefit instead of another, either, but not both, of which he might claim.”
In the instant case, I cannot find how the applicant could have been said to have consciously abandoned her right to enforcement of the judgment in issue or how she could have been deemed, to abandon it or neglected to enforce it. There is no document tendered to show the applicant waived her right to the awards in issue; and this application, to enforce the aspects of the awards in issue is, brought before the limitation period applicable in Enugu State to enforce awards – see section 20 of the Actions Law of Enugu State. The learned counsel to the judgment creditor/applicant had made the argument that, because it was thought garnishee proceedings would not be the appropriate enforcement procedure to enforce these aspects of the awards, another application is being brought. Whether this opinion is right or wrong, does not matter. It shows clearly that, the applicant never had the mind to abandon these aspects of the awards. In any case, I found at paragraph 19 of the affidavit in support of the application that, letters, three of which were written after the garnishee order absolute in issue was granted on 14th July 2014, demanding for the implementation of the remaining aspects, which were not honoured. All that is important in this situation is that, the application was brought within time.
The situation here, should be distinguished from right to file an action, where no duty is priorly imposed on the defendant to comply with any order of court, hence, if the claimant failed to bring all his claims before the court at a go, she could be deemed to have waived such claim or, if she failed to bring forward a particular relief then, she could be deemed to have abandoned it; and therefore estopped from bringing it in future. On the contrary, the instant case is, a situation where, a positive order of quasi-court of competent jurisdiction [IAP] had been made and thus, burdening the judgment debtors/respondents with the duty to comply with, and carry out the order, without any promptings from the judgment creditor/applicant, in whose favour the order was made. So, whether or not application was made to enforce any part of the judgment, the judgment debtor is under compulsive obligation to, on its own, without the promptings of anybody, carry out the order and comply with the directives contained in the judgment.
It is quite different from pre-judgment period, when the claim to a right, is still in dispute and could therefore, be deemed waived, if not pursued along with collateral rights, at the same time. After judgment, the right granted becomes crystalized into enforceable right, and the judgment debtors become burdened to comply with the terms of the rights granted, without the need of the judgment creditor to prompt her. It is only when the judgment debtor contemptuously failed to carry out this burdened duty that, the judgment creditor proceeds to enforce it. Therefore, whether or not the judgment creditor enforces a part and leaves other parts unenforced, does not relieve the judgment debtor of the obligation to seek out the judgment creditor and pay the debt or to comply with the order of court; except the judgment creditor positively waived such right. So, it cannot lie in the mouth of a judgment debtor to claim, without positive evidence of waiver, that a judgment creditor had waived a judgment debt she is under obligation to seek out the judgment creditor and pay. It is only when she seeks out the judgment creditor to pay the debt and the judgment creditor says, I forgo it that, the judgment debtor can claim waiver. This is because, the duty of the judgment debtor to pay is not depended on the promptings of the judgment creditor.
To prove waiver under such situation, there must be positive waiver or that, the time for execution had elapsed, while parts of the award were executed within time, and the other parts, sought now, to be executed, were left unexecuted within time, is being now brought outside the limitation period. Only under such situation, would a court be inclined to coming to the conclusion that, such parts or reliefs had been abandoned or waived, otherwise, a court of law would unwittingly be encouraging judgment debtors to deliberately refuse to comply with judgments of courts, which they are duty bound to comply with, by waiting to see if they could raise issue of waiver at any time the judgment creditors bring out applications to enforce the judgments within time thus, seeking to gain from their wrongdoings, in not seeking out the judgment creditors to pay the debts. Hence, the arguments on waiver or abandonment are misconceived; and therefore dismissed, as lacking merit.
Apparently, it is clear that, the IAP’s awards (d) & (i) are distinct from those of (a) & (b). Without superior proof and argument to the contrary, the Court is obliged to give distinctive effect to them and enforce them as such. To show that, they are the same, as awards (a) & (b) or that awards (d) & (i) coalesce into (a) & (b) or is just a further elaboration of (a) & (b), as the judgment debtors/respondents sought to argue, the judgment debtors/respondents must, show their compliance with the orders for promotion and payment of accrued increments thereto and that these were inculcated into the liquidated damages in (a) & (b), which had been enforced. They must show what grades each of the workers was before the IAP’s awards and the monetary implications for the pre-awards’ arrears; and what they became after compliance or at compliance with the orders contained in awards (d) & (i); and how these, tally with or cohabited in the liquidated damages in awards (a) & (b), already enforced.
When a judgment debtor is under obligation to compute and pay ascertainable amount to judgment creditor and failed to comply, after repeated demands from the judgment creditor, the judgment creditor is at liberty to personally compute same, and bring to the notice of the court for enforcement. The only thing the judgment debtor can do, at that stage is, to show by her own calculation, if she disputes the calculation of the judgment creditor, what she considered to be the correct amount. Where this is not done, the court is at liberty to presume that, the computation done, by the judgment creditor is correct; and proceed to give vent to it, in an application for enforcement, duly brought by the judgment creditor – see Suit No. NICN/OW/59/2014 – Ohakim v. Imo State Governmnet & Ors , Ex-parte Access Bank & Ors [Delivered 23rd February 2018] pp. 7-8, where the Court held:
“Now, I wonder the reason for the contention that the judgment debtors/applicants were not involved in the computation leading to the judgment sum garnished. What else did the learned counsel to the judgment debtors/applicants expect the judgment creditor to do? If the judgment debtors/applicants had responded to the demand for the judgment debt, it would have computed, by themselves, what they believed the judgment debt ought to be and when the computed figure by the judgment creditor got to them, they would have reacted by stating their own version of the computation if they did not agree with the computation done by the judgment creditor. Neither of these they did. How can they now complain that they were not involved in the computation of the judgment debt? Let me state that, it is even the duty of the judgment debtors to comply with the judgments of court without promptings. The judgment debtors/applicants in this instance failed to comply on their own volition, and they are now complaining that calculation of the judgment sum was done without their input. Bear in mind that this was done after repeated written demands were not replied. In In-Time Connection Limited v. Ichie (2009) LPELR-8772 (CA) 20, paras. D-G, the Court of Appeal held, and I quote:
‘The law espoused in JOE IGA V. CHIEF EZEKIEL AMAKRI (1976) 11 SC 1; GWANI V. EBULE (1990) 5 NWLR [pt. (sic) 149] 201; VASWANI V. JOHNSON [2000] 11 NWLR [pt. (sic) 582 and recently by this court [sic] in unreported OIL GAS EXPORT FREE TRADE AUTHORITY V. DR. T.C. OSANKPO [CA/PH/366/200S [sic] of 20th January, 2009] is that where a creditor writes a demand letter which the supposed debtor fails to react to the silence of the latter leads to presumption of admission by conduct.’
On the authority of the above case, I hold that it is too late in the day for the judgment debtors/applicants to challenge the computation of the judgment sum. This is even more so, in that, up till the present moment, the judgment debtors/applicants have yet to come up with their own computation. It should be noted that the judgment sum involved is a liquidated debt, which could be arrived at by simple arithmetic.”
I now come to the issue of the competence of the application. The learned counsel to the respondents attacked the application on two grounds under this banner: 1, that, it was not brought under the Sheriff and Civil Process Act [SCPA] and 2, that, the application was incompetent because, what the applicant is asking the Court to do, is akin to asking the Court to do the work of the IAP, by making another award and that, this is contrary to section 7(1)(c)(ii)(v) of the NICA, which only empowers this Court to enforce IAP award, and no more.
I state straight away that, the powers of this Court to enforce the awards of IAP is sue generis in that, it is directly granted by section 254C(1)(j)(ii) and 4 of the 1999 Constitution [as altered], section 7(1)(c)(v) of the NICA and Order 17, Rule (3)(3) of the NICN [Civil Procedure] Rules, 2017; and more particularly, the award to be enforced, is not made by the this Court, but by the IAP, which is not under the purview of the SCPA. So, the SCPA has nothing whatsoever to do with the enforcement of the awards of the IAP. The enforcement of the awards of the IAP is entirely governed by the enabling statutes, as outlined above. Besides, the IAP is not one of the courts whose judgments/awards are to be enforced via the SCPA. I therefore hold that, the SCPA is totally inapplicable to enforcement of the awards of the IAP. Hence, the objection based on this, is without merit, and is accordingly dismissed. I now go to the other aspect of objection attacking the competence of this application.
I think, I agree with the learned counsel to the judgment debtors/respondents that, the present application is not competent, after all. It is so, in any event; and not necessarily for the reasons adduced by the learned counsel for the judgment debtors/respondents. I am not convinced by the arguments of the learned counsel to the judgment creditor/applicant to the contrary that, this application is simply to enforce the awards of the IAP. While I agree that, there remain parts of the IAP’s awards yet to be executed, I am not prepared to agree that; the present application is, anchored to execute those remaining parts of the IAP’s awards.
It would appear that, what this suit is all about, is to pray the Court to make an order that, this is the exact liquidated amount owed by the judgment debtors/respondents to the judgment creditor/applicant, under awards (d) and (i) of the IAP’s awards, under consideration. It is clear that, what is before me, is not an application for enforcement of any judgment or award of the IAP, but one praying me, to grant another award in replacement of the original one granted by the IAP, by now making another award, directing the payment of an exact amount, failing which, perhaps, proper enforcement proceedings could probably be brought. That being so, this suit/originating application is improper because, this Court cannot go on to make all-over again, the same order the IAP had already made, by just slightly varying it to one stating the exact amount.
What this Court is empowered to do, is to enforce IAP’s awards and not to rehear a case already heard and decided by the IAP and proceed to reframe such award under the guise of execution or enforcement. If the judgment creditor/applicant knows that, there is an IAP’s award in their favour, yet to be executed and she desires to execute, let her bring a proper application for execution; and not one, desiring a repetition of the same award. What the learned counsel to the applicant has done is, to place the cart before the horse rather than, the horse before the cart, by now asking the Court to remake the same award, instead of bringing a proper application for execution or enforcement of an award already made. To enforce the IAP’s awards in question: the jurisdiction of this Court must be properly activated, by bringing the proper application for execution/enforcement. A court of law cannot transgress the powers granted it by statute. This Court has no original jurisdiction over this matter. It is the IAP that has. It cannot therefore grant any award, but strictly limited by statutory powers granted on that behalf, to only execute/enforce the IAP’s awards: not more, not less.
I think the real problem, as could be discerned, is about the distinction between liquidated and unliquidated sums. What the applicant attempted to do here is, to turn what, she calls ‘unliquidated sum’ to liquidated one, in order to be able to enforce it, without much ado. But, I think, the learned counsel could, as well, be mistaken and therefore, failed to appreciate the real distinction between liquidated money demand and its opposite. It does not mean that, because, a sum has not been computed or because, a specific figure was not given in an award that, it is not liquidated. Monetary claims or special damages that are to coalesce in future might be liquidated notwithstanding that, they were not calculated in advance and the award made on that specific figure, provided positive arithmetic data abound by which the grand total of the liquidated sums could be arrived at – see p. 16 of the decision of this Court in Suit No. NICN/ABJ/27M/2014 – Ujiagbo Simeon Uzoma & 183 Ors. v. Nigeria Security and Civil Defence Corps, Ex-Parte: First Bank of Nigeria Plc & Ors. [Delivered 8th December 2016], wherein, the issue of liquidated sum was clarified:
“Now, the question is, is the relief for salaries and allowances ascertainable in advance? The answer will be determined by the meaning of liquidated sum. In Maja v. Samouris (2002) LPELR – 1824 (SC) 21 – 22, the Supreme Court defined liquidated sum in the following words:
‘A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertained as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear…’
From the above judicial definition of liquidated sum, it is clear that it is not compulsory that the exact amount involved must have been calculated and stated in advance. What is paramount is that, the amount involved must be easily determinable on the basis of some definite arithmetical formulae. It does not mean that the liquidated sum cannot be futuristic in respect of a continuing injury or cause of action, as in this case. The claimants are claiming their salaries and allowances till judgment is entered and eventually complied with. In a situation like this, where the issue is really that the claimants are claiming to remain staff of the defendant and as such, continued to be entitled to their salaries and allowances, from the time of the cause of action till the time the judgment that is entered in their favour is complied with, I do not know how the counsel to the applicants want them to be able to state in advance what the exact amount would be, when they do not and cannot know when judgment would be entered in their favour and when it would be eventually complied with.”
Deduced from the above, it is my well considered view that, once an award could be calculated by clear data or table, with mere arithmetic computation, it is liquidated, notwithstanding that, such was not done before judgment was given or award made; the calculation could therefore, be made later at the point of execution, if and when the judgment debtor fails to make it. If the monetary implications of awards (d) and (i) could be arrived at, by simple tables of the nominal rolls of the workers, tabulation of their individual stagnant levels and the levels to which, individually, they ought to be promoted, at specific dates or the retirements benefits thereat; and the financial implications reflected for each worker, and the cumulative grand total is reflected at the end of the tabulation, it might definitely be possible to enforce same, through garnishee proceedings; and in such situation, garnishee proceedings might be properly brought to enforce the awards. Therefore, the previous garnishee proceedings could probably have also accommodated awards (d) & (i) with their monetary implications shown or made clear, in such ascertained manner, thereby bringing out the liquidated nature of the awards.
In the alternative, if the judgment creditor/applicant is of the strong view that the judgment sum is not liquidated, application for committal could be properly brought, to put the recalcitrant officers of the judgment debtors/respondents in prison, until the order of the IAP is carried out – see Order 63, Rules 1(2)(b) and 2 of the NICN Rules. If the judgment debtors/respondents feel strongly too, that, they have a grouse against the awards of the IAP, they ought to have woken up from their slumber and challenge the awards of the IAP by way of appeal and not by challenging the enforcement of the award at the point of execution. The Court is not at this stage exercising its appellate jurisdiction over the IAP. Good enough, the learned counsel to the judgment creditor/applicant had argued that, it was a criminal offence for the judgment debtors/respondents not to have complied fully with the IAP’s awards, by virtue of section 14(4) & (5) of the TDA. I think by this, it should have occurred to the learned counsel that, the procedure outlined in the TDA for committal for contempt for failing to comply with awards was a proper procedure to utilize in this instance or, the invocation of the general committal procedures of this Court, for contempt, in failing to comply with judgments or awards, as earlier indicated above, which the Court has powers to enforce, just like its own judgments, should have been considered too.
What the applicant had done now is, to ask this Court to redraw the award of the IAP and make it an award of specific sums of money, then, order the judgment debtors/respondents to pay, and perhaps, if the judgment debtors failed to comply, as they have already done, bring garnishee proceedings to enforce it. This, I don’t think is proper. Not being the IAP, this Court cannot redraw the award already made by the IAP; but, can only enforce it. The applicant could only ask this Court to enforce the award by way of proper application in that behalf; and not ask it to grant another order in the nature of mandamus, already granted by the IAP.
On the whole, I observed that, the enforcement powers and procedures of this Court have not been properly invoked. There is, therefore, no application to enforce any award before this Court but rather, an application to make another award in replacement of the one made by the IAP. To invoke the enforcement powers and procedures of this Court, like in any other court, the applicant must go beyond asking the Court to make an order compelling the judgment creditors/respondents to carry out a mandatory order already made by the IAP: that is simply repetitious. Making an award is, in the realm of judgment, and not enforcement. The applicant must go further than that, by praying the Court to do what the judgment debtors failed to do, as mandated in the reliefs granted in the judgment or the award granted by the IAP. The proper thing to do, in an application for execution/enforcement, is that, the applicant either asks the Court to attach the personal property of the judgment debtor and put it on sale by itself, to defray the judgment sum or asks the court to attach the judgment debtors’ monies with third parties’ via garnishee proceedings or attach the judgment debtor’s realty and put it on sale to realise the judgment debt or, if all or any of these would not fulfill the purpose of the relief granted, then, by bringing committal proceedings against the person of the judgment debtor, asking the Court to commit him/her to prison until s/he complies with the positive directives contained the judgment or award.
The judgment creditor’s counsel herein failed to appreciate the nature of judgment enforcement procedures and powers of courts therefrom. Enforcement procedures, like the name sounds, are meant to enable the courts, in the main, especially in relation to monetary reliefs, to bypass recalcitrant judgment debtors, by attaching their properties [personal or real] and put them on sale to defray the judgment debts, or attach the judgment debtors’ monies with third parties, by way of garnishee proceedings, to offset the judgment debts, and, usually, where the reliefs are not monetary, by committal of the judgment debtors or their alter egos, in case of artificial bodies, to prison, until compliance with the orders in issue.
They have never been designed to enable the enforcing courts to make another or countless number of the same original positive orders, which the recalcitrant judgment debtor has demonstrated contempt of, in different guises, as the extant applicant appears to be asking the Court to do. Having failed to bring the proper application, this application is improper and therefore grossly incompetent. In answering the poser contained in the lone issue, I therefore hold that, the Court is presently hampered from taking cognisance of the reliefs claimed, because; the enforcement jurisdiction of this Court was not, properly invoked. The application is accordingly struck out for being incompetent.
I think, I could only strike out the application since, I found that, there remained parts of the awards of the IAP yet to be enforced and that, the applicant has the vires to enforce same. It means, I have not determined the application on its merits. Having found that, the applicant likely had enforceable awards of the IAP in its favour, I cannot shut it out from exploring the possibility of enforcing the awards, but she must come in the proper manner, hence, the striking out of the improper originating application. The above is the judgment of the Court on this originating application. I award no cost.
Judgment is entered accordingly.
…………………………..
HON. JUSTICE O.O. AROWOSEGBE
Presiding JUDGE
ENUGU DIVISION
NATIONAL INDUSTRIAL COURT OF NIGERIA
