GOVERNOR OF EKITI STATE & ORS v. GRIDS ASSOCIATES LTD & ORS (2022)

GOVERNOR OF EKITI STATE & ORS v. GRIDS ASSOCIATES LTD & ORS

(2022)LCN/16751(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/EK/106/2020

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

1. GOVERNOR OF EKITI STATE 2. ATTORNEY GENERAL OF EKITI STATE 3. MINISTRY OF WORKS AND INFRASTRUCTURE 4. MINISTRY OF COMMERCE, INDUSTRIES COOPERATIVE AND TOURISM APPELANT(S)

And

1. GRIDS ASSOCIATES LIMITED 2. ZENITH BANK PLC 3. F.C.M.B. LTD RESPONDENT(S)

RATIO

WHETHER OR NOT AN APPLICATION FOR INSTALLMENT PAYMENT IS LIKE AN APPLICATION FOR STAY OF EXECUTION

An application for installmental payment is like an application for stay of execution. The applicant is expected to show special circumstances before it can be granted. It is not granted as a matter of course.
See: ISYAKU v. UGWU (2017) LPELR – 43117 (C.A.);
See also: LIVESTOCK FEEDS PLC v. IGBINO FARMS LTD (2002) 5 NWLR 755 (118). PER AWOTOYE, J.C.A.

TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the Judgment Debtors’/Respondents against the Ruling of the lower Court delivered on 16/11/2020.

The applicants had sought for an order of the Court to pay the sum of Seventy Three Million, Two Hundred and Fifty Two Thousand, Five Hundred Naira (N73,252,500.00) Only, being the fourth installment as stated is the judgment delivered on 11/11/2015 which installment payment should be as follows:
“1. 1st Installment on or before 30th September, 2020 – N12,208,760.00
2. 2nd Installment on or before 31st October, 2020 – N12,208,760.00
3. 3rd Installment on or before 30th November, 2020 – N12,208,760.00
4. 4th Installment on or before 31st December, 2020 – N12,208,760.00
5. 5th Installment on or before 31st January, 2021 – N12,208,760.00
6. 6th Installment on or before 28th February, 2021 – N12,208,760.00.”
An order vacating the Garnishee Order Nisi granted by the Court on the 22nd of June 2020 upon granting this application.”

After exchange of processes by the parties and hearing by the learned trial Judge, his Lordship held thus:
In the instant case the essence of the order Nisi has been fulfilled by the 1st Garnishee who has shown that it has sufficient funds at its disposal belonging to the judgment debtor which can satisfy the judgment debt and I so hold.
I have painstakingly evaluated the documentary exhibits attached to the instant application; in equal vein I have also considered that the 1st Ganishee has shown it has sufficient funds at its disposal to satisfy the judgment sum. This Court cannot assist to re-write the terms of settlement contained in the consent judgment of 11th November, 2015 by ordering another installmental payment given that the defendants/applicants had already complied with the consent judgment to a considerable extent.
Notwithstanding the financial status of the State as depicted through MOJ 1, MOJ 2, MOJ 3, MOJ4, this Court as this stage of garnishee proceedings under the Sheriffs and Civil Process Act, Cap. 6 LFN 2004 and the Constitution of the FRN 1999 as amended is forbidden to re-write the terms of the consent judgment or to sit in Appeal over same by subjecting the initial installmental payment to another set of installmental payment as prayed in the instant application. This Court lacks Jurisdiction to do so and I so hold.
1) In conclusion, I order that prayers of the applicant in leg A is refused same lacks merit in law in view of the consent judgment of a Court of co-ordinate jurisdiction which was not set aside or appealed given on 11th November, 2015.
2) In the same vein leg 2 is refused.
3) I also deem it fit to order that the Garnishee Order Nisi granted by this Court on the 22nd June, 2020 is hereby made absolute against the 1st garnishee, Zenith Bank Plc. while the 11th Garnishee First City Monument Bank Ltd, is discharged, based upon the Garnishees disclosure at the proceedings of Court on the 26th day of October, 2020.

Dissatisfied with the above Ruling, the appellants filed Notice of Appeal containing two grounds of Appeal.
GROUNDS OF APPEAL
GROUND ONE:
The trial judge erred in law and thereby occasioned a miscarriage of justice via his judgment of 16th November 2020 wherein the trial judge made absolute the order nisi attaching the account of the Appellant with garnishee.
PARTICULARS OF ERRORS-IN-LAW
i. That the Ekiti State High Court Hon. Justice C.I. Akintayo gave consent Judgment between the parties herein for the payment of a total sum of N319,757,680.91 in four installments.
ii. That the Defendants/Applicants herein have since paid the 1st – 3rd installments remaining the last installment.
iii. That as a result of paucity of funds in Ekiti State and the financial constraints, the State finds it difficult to pay the outstanding judgment debt in a lump sum except on installments.
iv. That the judgment Debtors are willing to pay the judgment debt by six (6) installments of N12,208,760.00 per month (Twelve Million, Two Hundred and Eight Thousand, Seven Hundred and Sixty Thousand Naira).
v. That the ruling/judgment did not give weighty consideration to be above facts.
GROUND TWO
The judgment is against the weight of evidence.

After transmission of record of appeal to the Court parties filed and exchanged briefs of argument.

S.B.J. Bamise, the Director Civil Litigation settled the Appellants’ Brief of Argument and filed same on 15/3/2021. It was deemed filed on 16/3/2021. Learned Counsel filed the Reply Brief upon being served the respondents brief of argument on 18/6/2021. The Reply Brief was deemed filed on 23/11/2021.

FEMI FAMILUSI for the 1st Respondent prepared the 1st Respondent’s Brief of Argument and filed same on 18/6/2021. It was deemed filed on 23/11/2021. Each of Learned Counsel for the Appellants and 1st Respondent respectively proposed issues for determination.

ISSUES:
APPELLANTS:
1. Whether the lower Court should have refused appellants’ application for installmental payment when the appellants are willing to pay the outstanding sum and could only, from all circumstances, afford to pay same via installmental payment.
2. Whether by virtue of uncontroverted averments in paragraphs 5(b), (c), E, (f) & (j) of the appellants’ Affidavit in support of application for installmental payment, the appellants have not placed before the lower Court special circumstances warranting the Court exercising its discretion towards granting appellants application for installmental payment, notwithstanding 2nd Respondents’ affidavit to show cause disclosing sufficient credit balance in the appellant’s accounts.
3. Whether in view of the totality of the affidavit evidence in support of the application for installmental payment, before the lower Court, the lower Court’s decision in dismissing appellants’ application for installmental payment is not against the weight of evidence.

1ST RESPONDENT:
“Whether or not there is merit in the Appellants’ appeal”

RESOLUTION OF ISSUES:
I have deeply considered the issues identified by the parties. I am of the view that the sole issue formulated by the 1st Respondent is wide and apt enough for the just determination of this appeal. I therefore adopt same.
SOLE ISSUE:
WHETHER OR NOT THERE IS MERIT IN THE APPELLANTS’ APPEAL
The Ruling being appealed against in this appeal was delivered on 16/11/2020.

The applicants at the lower Court had sought the order of the Court to pay the sum of N73,252,500.00 in six equal monthly installments. By the application, the said sum by the proposal of the appellant would have been liquidated on or before 28/2/2021. This is the year 2022 still the said judgment Sum has not been fully paid up till now.
Even though the application of the appellants was not granted by this appeal, the appellants had the grace to fully settle the judgment debt over a longer period of time.

An application for installmental payment is like an application for stay of execution. The applicant is expected to show special circumstances before it can be granted. It is not granted as a matter of course.
See: ISYAKU v. UGWU (2017) LPELR – 43117 (C.A.);
See also: LIVESTOCK FEEDS PLC v. IGBINO FARMS LTD (2002) 5 NWLR 755 (118).

The trial Judge in his Ruling made some findings of fact. His lordship found that the 1st Garnishee showed that it has sufficient funds at its disposal to satisfy the judgment sum.

His Lordship also found that the applicant had agreed to the terms of the consent judgment which it now sought to vary. These findings have not been challenged in this appeal. They are therefore deemed as admitted.

What is more, the grant of this application is purely discretionary and must be exercised judicially, judiciously and equitably.

The judgment debt in question in this appeal ought to have been fully paid up on 28/2/2021 if the application of the appellant had been granted.

Up till now the judgment has not been paid up. This does not show sincerity and seriousness on the side of the appellants.

It does not show willingness to settle the debt. The Court should not be used to deprive a successful litigant of the fruit of his labour.
I hold that this appeal lacks merit. It is accordingly dismissed.

The judgment of the lower Court delivered on 16/11/2020 is hereby affirmed with cost of N500,000.00 against the appellants.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

ABDUL-AZEEZ WAZIRI, J.C.A.: My learned brother, TUNDE O. AWOTOYE, JCA, obliged me with a draft copy of his lead judgment just delivered. I imbibe the reasons articulated therein and his lordship’s conclusion that the unmeritorious appeal be dismissed. Accordingly, I too dismiss the appeal and abide by the consequential orders contained in the lead judgment including the one on costs.