CHEMICAL & NON METALLIC PRODUCTS SENIOR STAFF VS WEST AFRICAN GLASS INDUSTRY PLC & 3 ORS

IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE ENUGU JUDICIAL DIVISION

HOLDEN AT ENUGU

BEFORE HIS LORDSHIP, HON. JUSTICE I.J. ESSIEN (Ph.D)

DATE: 5^th February, 2018

SUIT NO.: NICN/EN/27/2017

BETWEEN:

CHEMICAL & NON METALLIC PRODUCTS SENIOR STAFF ASSOCIATION OF NIGERIA (CANMPASAAN) ==== =================================JUDG. CREDITOR/APPL.

AND

WEST AFRICAN GLASS INDUSTRY PLC & 3 ORS=====

===================================JUDG. DEBTOR/RESP.

REPRESENTATION:

George Ogara Esq. for the judgment Creditor/Applicant

C.D Asomeji Esq. for the 1^st and 4^th judgment debtor/Respondent

Frank Oniri Esq. Director Civil Litigation Ministry of Justice Rivers State for the 2^nd Judgment debtor/Respondent.

N.C. Nwaonumah Esq. for 3^rd Judgment debtor/Respondent

JUDGMENT

The first party/award obligee and applicant pursuant to leave of this court by a motion on notice dated 8^th May 2017 and filed on the 17^th May, 2017 sought an order for the issuance of a Writ of Execution to attach and sell the land/building of the judgment debtor/2^nd party award obligor/Respondent to satisfy the arbitration award contained in the Notice of Award in the trade dispute between Chemical and Non-Metallic Products Senior Staff Association of Nigeria (CANMPSSAN) and West Africa Glass Industries Plc made by the Industrial Arbitration Panel (IAP) dated 3^rd August 2012 and confirmed by Federal Republic of Nigeria Official Gazette No.94 Vol. 99 of 30^th November 2012

The applicant seeks an order to attach and sell the land/building of the 1^st respondent situate and lying at No 134 Trans-Amadi Industrial Layout Port Harcourt Rivers State. The application is supported by 26 paragraph affidavit deposed to by one Emmanuel Kany, the Vice Chairman of the award obligee/applicant. Annexed to the affidavit are Exhibit A the Notice of Declaration of a Trade Dispute addressed to the 1^st respondent. Exhibit B the Notice of Award. Exhibit C the Official Gazette No 94 Vol. 99 of 30^th November 2012 of the award. Exhibit D the enrolled order granting the applicant leave to enforce the award. Also in support of the application is the written argument in support of the application.

In response to the applicant’s application, the respondent/judgement debtor filed a motion on notice dated and filed on the 19^th June 2017, praying the court for:

An order vacating and/or discharging the ex-parte order made against the judgment debtor/applicant on 3^rd May, 2017.

The order sought to be vacated is the order granting leave for the applicant to enforce the award through this present application. In support of the motion is a 30 paragraph affidavit where in Exhibit A “ie a terms of settlement in Suit No NICN/EN/151/2013 is annexed. The motion is also supported by a written address of counsel. The 2^nd and 3^rd judgment debtors who are represented by different counsel other than the counsel that filed this application did not file any process in support of the application. The judgment creditor filed a counter affidavit dated and filed on the 14^th November, 2017 in opposition to this motion. The 19 paragraph affidavit is supported by Exhibit A (the financial computation of the monetary value of the award in accordance with the notice of award) made by the firm of Banes and Brown Consulting. Exhibit B is the terms of settlement the same terms of settlement as in Exhibit A1 to the judgment debtor applicant affidavit. Exhibit C is the motion to enforce the award in suit No EN/151/2013 in support of the counter affidavit also is the written address. I shall first determine the motion of the judgment debtor applicant dated 19^th June, 2017 before looking at the judgment creditor’s application to enforce the award in this proceedings.

The judgment debtor/applicant in this motion is seeking an order discharging or vacating the ex-parte order made on the 3^rd May, 2017 granting the judgment creditor leave to enforce its award via the motion on notice of 17^th May, 2012.

The main plank of their application is that:

The institution of this suit amount to forum shopping and abuse of process.
That the ex-parte order granted by this court was obtained through concealment/suppression of facts.
That the subject matter of the application is not within the jurisdiction of the Honourable court.

I have carefully read the argument proffered on the above mentioned 3 grounds upon which this application is predicated. On the other hand the respondent/judgment creditor formulated two issues for determination to wit:

Whether this honourable court rightly exercised its jurisdiction to grant leave to the judgment creditor to enforce Arbitral award in the order dated 3^rd May, 2017
Whether this suit amounts to or is an abuse of court process.

I have carefully read and considered the written submission made by counsel to the respondent in this

The issues formulated by both parties are the same issues. The duty of this court is to determine whether the order of 3^rd May, 2017 granting leave to enforce this award was properly made and if not whether this court can set same aside.

First I must state here that by the provisions of S.254 C (i) (j). This court is vested with jurisdiction in matters relating to the determination of any question as to the interpretation and application of any

_ _ _ _ _ _ _
Award or order made by an arbitral tribunal in respect of a trade dispute or a trade union dispute

Award or judgment of a court.

It is the view of this court that the phrase “interpretation and application of award or order made by an arbitral tribunal in respect of a trade dispute” as used in the above section includes the enforcement of arbitral award. The position canvassed by the counsel to the applicant that this court lacks jurisdiction to entertain this suit as the subject matter is not within the jurisdiction of this court is wrong and is therefore discountenanced I therefore hold that the court has jurisdiction to entertain the subject matter of this suit.

Having said this, the question is how is an arbitral award enforced by this court. The resolution of this question would address grounds 2 of the grounds of this application. The applicant argues that there was no urgency to warrant the order being made ex-parte and that the order is liable to be set aside under Order 17 Rule 2 (3) of the rules of this court. It is the view of this court that the applicant counsel has missed the point regarding the nature of ex-parte order required for leave to initiate any application to enforce an award. The ex-parte application resulting in the order of 3^rd May, 2017 is one of the ex-parte application expressly permitted by the rules of this court and in particular order 17 (2) (1), therefore there need not be any urgency in bringing the application ex-parte. The provisions of Order 47 Rule 29(1) and (2) of the NIC Rules 2017 requires a party seeking to enforce a judgment or an award as in the present situation to first apply for leave to be made by motion ex-parte and the application shall be accompanied by:

Statement setting out the name and description of the applicant
The judgment, ruling or order to be enforced with the details and particulars
An affidavit in support.

Further to the above, Order 47 Rule 29(3) is very emphatic and provides:

No application for enforcement of the judgment, ruling or order shall be made unless the leave of court has been obtained in accordance with this rule.

The judgment debtor/applicant has contended that the ex-parte order granted by this court was obtained through concealment/suppression of fact. He has extensively argued that the order of 3^rd May, 2017 granting the judgment creditor/respondent leave to apply to enforce the award was an ex-parte interim order. In another breath counsel calls it an interim injunction and cited several cases dealing with interim injunction. See the argument on 3.4, 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 4.2, 4.3, and 4.4. I think that learned counsel has missed the mark by a wide gap and misconstrued the nature of the order made by this court on the 3^rd May, 2017. There can never be concealment/suppression of facts once there is compliance with Order 47 Rule 29 (1) and (2) in bringing the application for leave.

The order of 3^rd May, 2017 was not a interim injunction the argument made by counsel for the applicant goes to no issue and is hereby discountenance. This court therefore holds that upon satisfaction of the condition in order 47 Rule 29 (2) the court rightly made the order granting leave to the judgment Creditor/Respondent to apply to enforce the arbitral award. The prayer seeking to vacate or discharge the order of 3^rd May, 2017 is hereby refused, and accordingly dismissed.

The applicant counsel has also contended that the institution of this suit in this court amounts to forum shopping and abuse of court process. I think this argument cannot be entertained in this part of the ruling in view of the fact that it has the tendency to touch on the main application of 17^th May, 2017 which ruling shall consider this issue.

On the whole this application fails and is hereby dismissed.

I shall now return to consider the motion of 17^th May, 2017. In this motion the judgment creditor applicant is seeking an order to issue a writ of execution to attach and sell the land/building of the judgment debtor/respondent lying and situate at No. 134 Trans-Amadi Industrial Layout, Port Harcourt, Rivers State. The judgment debtors/ respondents are opposing this application and have filed their various responses except for the 3^rd respondent judgment debtor who did not file any process. I have carefully read over the submissions of counsels for the parties and have also considered their oral adumbration as recorded by the court as well as the issues formulated by them in their respective written address and replies on point of law. I have also read the authorities cited by counsel in their addresses. The issue for determination which will accommodate the various issues formulated and argued upon in the written addresses in the view of this court is:

“Whether the judgment creditor/applicant is entitled to enforce the arbitral award published by Federal Republic of Nigeria official Gazette No. 9 Vol. 99 of 2012 by a writ of execution to attach the immoveable property of the defendants and if not can this present proceedings amount to an abuse of court process”

I have earlier in this judgment while considering the application to discharge the order of 3^rd May, 2017 granting leave to enforce this award held that the judgment creditor/applicant had satisfied the requirement of Order 47 Rule 29 (1) of the rules of this court to be entitled to the grant of leave to enforce the award. The issue then becomes whether this procedure adopted by the applicant is competent to enforce this award.

The 1^st and 4^th judgment debtor/respondent contends that this suit amounts to forum shopping in view of the existence of suit No. NICN/EN/151/2013 which suit entered a terms of settlement as judgment of the court on the 28^th November, 2017 in attempt to enforce the award through a compromised sum lesser that the sum granted in the award. He further contends that this present suit ie Suit No. NICN/EN/151/2013 is an abuse of court process. He also contends in his written argument that this suit ought not to have been filed in this jurisdiction but in port Harcourt jurisdiction since the court cannot exercise jurisdiction over a subject matter outside the territory of the state of the federation. Counsel cited the case of OGUNDE Vs GATEWAY TRANSIT LTD [2018] 8 NWLR (pt. 1196) CA 207.

On the other hand, the 2^nd respondent contends that this suit is an abuse of court process, that the suit was filed during the pendency of suit No. NICN/EN/151/2013 and cited the case of ARUBO V. AIYELERU [1993] 3 NWLR (pt. 280) 126 126 at 142 para A-D He also contend that the award did not declare the liability of the 2^nd respondent nor did it declare the liability of any of the respondents/debtors on record in monetary terms. Also in his oral argument he said the profession opinion of Barnes & Brown a chartered accounting firm that produced Exhibit A ie the Financial Calculation of Outstanding Salaries and Allowances Due to 189 Members of the Judgment Creditor/Applicant, cannot be relied upon as it was made unilaterally and that 189 members of the applicants have not been ascertained. The 3^rd respondent did not proffer any argument.

First I must state that by the provisions of S.21 (1) of the National Industrial Court Act 2006 which provides:

21(1) The court shall have and exercise jurisdiction throughout the federation and for that purpose the whole area of the federation be divided by the President of the court into such number of judicial Divisions as the President may from time to time by instrument published in the Federal Gazette . . .

Furthermore, Order 2 Rule 1 of the National Industrial Court Rules 2017 provides:

1(1) Subject to the provisions of the Act on transfer of suits, an originating process in respect of a matter in which the court has jurisdiction shall be filed in any registry of the court nearest to where the defendant or respondent resides or has presence or in which the defendant or respondent carries on business;

Provided that where economic security, environment or other exigencies warrant, an originating process may be filed in the Court Registry in a judicial division other than that closer to the place of residence or business of the defendant or respondent.

The court has taken judicial notice of the fact that the motion with suit No. NICN/EN/151/2013 was filed in the jurisdiction of this court and due to certain exigencies which paragraph 17 (a) (b) (c) of the applicant further and better Affidavit of 14^th November, 2017 has explained off resulted in its being transferred to Yenegua and latter to Abuja for hearing. These facts were never contradicted. From the above quoted Order 2 Rule 1 of the rules of this court, I am in agreement with the learned counsel to the judgment creditor/applicant that there can never be forum shopping in the National Industrial Court. This court has only one jurisdictional territory. Therefore this application to enforce the arbitral award by issuance of a writ of execution can never amount to window shopping.

The judgment debtors/respondent counsel have also argued that this proceedings amount to abuse of court process. It is trite law that for an abuse of court process to arise the following requirement must be present at the same time:

The suits must be on the same subject matter
The parties must be the same

See Ogoejiofo V Ogoejiofor [2006] ISC pt 1 pg 157, See also Okafor V. A G Anambra [1991] 6 NWLR (pt 200) 659. The two suits in contention here are suits No. NICN/EN/151/2013 and Suit No. NICN/EN/27/2017.

As can be seen both suits were filed in Enugu Division of this court.

The subject matter in suit No. NICN/EN/151/2013 is the application to enforce the award by the adoption of a Garnishee Proceedings while the present application seeks the enforcement of the award by way of writ of attachment and execution against the immoveable property of the 1^st respondent/debtor. The subject matter are not the same, the parties in Suit No. NICN/EN/151/2013 are the chemical and Non Metallic Products Senior Staff Association of Nigeria and West African Glass Industries Plc and 13 other Garnishee banks. The parties there are not the same with the parties in this present suit as can be seen on the process filed in this application. It is the humble view of this court that there is no way these two suits can amount to an abuse of court process and or multiplicity of action. I must add that enforcement of judgment of a court of law is a special procedure allowed by extant laws which allow judgment creditors one or more option in the exercise of the right to enforce a judgment. The adoption of one or the other alternative cannot amount to an abuse of court process. In the light of the above I hold that this application is not and cannot amount to an abuse of court process.

The 2^nd respondent/judgment debtor’s counsel has argued that the award did not declare the liability of any of the respondents in monetary terms and that the financial computation by the chartered accounting firm engaged by the judgment creditor as shown as Exhibit A to the further and better affidavit of the judgment creditor/applicant dated 14^th November, 2017 cannot be relied upon. This court is unable to agree with the position of counsel for the 2^nd respondent for the following reason. In clause 2; of the award provides:

However before the computation of the actual entitlement and final payment of all the above benefits by 30^th September, to workers according to the years of service an interim pro rata payment to ease the financial burden is follows:

6 years and above (senior staff N500,000.-)
6 years and above (junior staff N250,000.-)

3 years – 5 years (senior staff N200,000.-)

3 years – 5 years (junior staff N100,000.-)
1 year – 2 years (senior staff N50,000.-)
1 year – 2 years (junior staff N25,000.-)

In clause 2 K of the ward it states.

Rivers and Bayelsa State Government have in the first instance, social responsibility towards the affected employees since it is their duty as government to ensure that there is no unfair labour practice within their jurisdiction. Secondly as employers they are obliged to comply with the provision of labour legislation as it is gathered that they have shares in the company. The panel believes that the percentage of their share is immaterial since both governments gave the core investor M. A K Mirchandahi 100% managerial privilege. The tribunal holds both government liable and should ensure that the workers are paid their entitlement.

These clauses are clear declaration of the 2^nd respondent liability in monetary terms. If there was no monetary declaration how did the judgment debtors/respondent arrive at the sum of N317,104,020.00 which was reduced to N140,000,000.00 which was entered as a consent judgment in the application to enforce the judgment via garnishee proceedings. In view of the above, I hold that the award made a declaratory liability of the respondents in monetary terms.

The 2^nd respondent’s counsel has also argued that the 189 members of the judgment creditors have not been verified. This should not be coming from the 2^nd respondent who did not keep the employment records of the members of the applicants. In paragraph 5 of Exhibit C of the further and better affidavit in support of this application dated 14^th November, 2017, the 1^st respondent admitted that the total number of employees involved are 189. The award had specifically directed that a computation of the actual entitlement be made and payment of the final benefits be made by 30^th September, 2011. Through the award is silent on whose duty it was to carry out the computation, it is the view of this court that the duty was on the party keeping the records of employment ie the 1^st and 4^th respondent to do so. Also a duty was also placed on the 2^nd and 3^rd respondent to ensure that there was compliance with the terms of the award having regards to clause 2(i) and (k) of the award. The award was made on the 3^rd of August 2012. There was no appeal against the award. A period of over 5 years have elapsed without the judgment debtors making any attempt to satisfy any part of the award. More so the judgment debtors/respondents have failed and neglected to cause a computation of what the 189 former employees of the 1^st respondent are entitled to under the award. The duty was on the respondents to do so because it is the duty of a debtor to seek one the creditor and pay his or her debt. Following their failure to perform this duty the judgment creditor sought the professional service of Barnes & Brown consulting to produce Exhibit A the financial computation or compilation of outstanding salaries and allowances due to the 189 members of the applicant. The award had specifically ordered this computation in clause 2 (i). The respondents did not contradict this computation in any paragraphs of the affidavits filed in opposition to this application. The computation having not been controverted is deemed to be correct. See Ikono L.G. Vs. De Beacon Fin. & Sec. Ltd [2002] 4 NWLR (pt 756) at 128.This being the case this court holds that the computation is deemed correct and valid having not been contradicted by the respondent, whose duty it was to produce the computation of the entitlement or to contradict the computation in Exhibit A by producing a computation which is advariance with the one in Exhibit A.

The Respondent’s counsels have also argued that this suit is an abuse of court process in view of the consent judgment entered on the 28^th November, 2017 in Suit No. NICN/EN/151/2013. Exhibit PCA2 annexed to the 1^st and 4^th Respondent, further and better affidavit of 19^th January, 2018. That being a valid an subsisting judgment, this court would be sitting in review of that consent judgment. I must make it categorically clear that Exhibit PAC 2 attached to affidavit of 19^th January, 2018 is a valid and subsisting judgment of this court. Until in set aside it is a judgment predicated on a disputed compromised figure of the award because the applicant in paragraph 8 of their further and better affidavit of 29^th November, 2017 are saying they never agreed to settle or compromise the award. A Judgment of court such as in Exhibit PAC 2 must be clearly distinguished from an enforcement proceedings such as being pursued by the judgment creditor/applicant in this proceedings. The members of applicant union are contending in paragraph 7 of the further and better affidavit thus:

That the former counsel of the judgment creditor/Respondent F.F. Sada Esq. failed to obtain the leave of this court to enforce the Industrial Arbitration award since 3^rd August, 2012 till 3^rd May, 2017 (a period of 4 years and nine months)
a) That without obtaining the leave of this Honourable court to enforce the industrial arbitration panel award the said F.F. SADA purportedly agreed to collect the sum of N140 Million installment from the judgment debtors for the members of the judgment creditors.

Those averments in the judgment creditor/applicants affidavit were never contradicted by any paragraph in the several affidavits filed by the respondents in this application.

I have carefully examined the enrolled order in Exhibit PAC.

The opening paragraph reads “upon the last date of hearing of the suit i.e the 28^th November, 2017, counsel to the Award Creditor/Applicant F.F. Sada informed the court that the parties have amicably resolved this matter and have filed a report of settlement on the 30^th September, 2016 which is intended to be adopted as judgment of this court. He also informed the court that he is withdrawing the claims against the garnishee ie Union Bank Plc and all other garnishee banks.

If I may recall the claims withdrawn as mentioned in the enrolled order are the prayers in the motion on notice Exhibit C to the further and better affidavit dated 14^th November, 2017 filed by the judgment creditor/applicant in support of this application. The prayers on the motion paper reads.

An order for leave to enforce the Arbitral Award dated the 16^th June, 2011 which award was made by the Industrial Arbitration Panel (IAP) between the Award Creditor/Applicant and the Award Debtor/Respondent up to the tune of N317,104,020.00
Leave to issue Order Nisi on the Garnishee

An order attaching the sum due to the Award Debtor/Respondent to the tune of N317,104,020.00 in the hands of the Garnishee for satisfaction of the Arbitration Award costs and interest in the matter of Arbitration between the Chemical and Non-Metallic Products Senior Staff Association of Nigeria (ANMPSSAN) and West African Glass Industry Plc.

Upon the withdrawal of these prayers the enforcement proceedings taken out by the members of the applicant was abated. The garnishee proceedings against Union bank and 12 other banks was truncated. There has been no other enforcement proceedings commenced by the applicant’s except this present proceedings.

The court of Appeal has made a clear distinction between an execution of judgment and other methods of enforcement of judgment. Even assuming the attempt to enforce the award by garnishee proceedings had commenced, this application to execute the judgment award by writ of execution would never amount to abuse of court process. In PURIFICATION TECHNIQUES LTD V. ATTORNEY GENERAL OF LAGOS STATE [2007] All FWLR (pt 211) 1479 at pg.1493 the court stated:

There is a clear distinction between execution of judgment and other method of enforcing judgment such as garnishee proceedings. The distinction is brought out by the definition of writ of writ of execution in section 19 of the Sheriffs and Civil Process Act Cap 407 LFN 1990. Writ of execution includes writ of attachment and sale, writ of delivery, writ of possession and writ of sequestration it excludes a garnishee proceedings.

At page 1493-1494 paras 11 – A, the court further held thus:

Execution of judgment entails the seizure and sale of chattels of the judgment debtor under warrant of court. This is different from attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor.

See Nigeria Telecommunications Plc V. I C.I.C (Directory Publishers Ltd [2009] 16 NWLR (pt 1167) pg 356 at 388, see also United Bank for Africa Plc. V. Ekanem [2010] 6 NWLR (pt 1190) pg 207.

These authorities strengthen the hand of this court in holding that this proceedings which is sanctioned by S. 19 of the Sheriff and Civil Process Act is not an abuse of court process. It is not also a review of the consent judgment of 28^th November, 2017.

In the light of the above and in the interest of justice this court finds this application meritorious and it is hereby ordered as follows:

A writ of execution by attachment and sell of the respondent/judgment debtors Land and Building situate lying and known as No. 134 Trans-Amadi Industrial Layout, Port Harcourt, Rivers State is hereby issued to the judgment creditor/applicant.
The judgement creditor/applicant shall attach and sell the property by private treaty or by auction in order to satisfy the judgement in the industrial arbitration award made in favour of the applicant on the 16^th June 2011, to the tune of N695,852,973.43k

Judgement is entered accordingly.

Hon. Justice I. J. Essien PhD