IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: HONOURABLE JUSTICE I. S. GALADIMA
Dated: 5th November 2018 SUIT NO. NICN/OW/8M/2018
Between:
Mr. Michael Akoreh
Mr. Daramola Adebola Sunny
Mr. Clement Agadagba
Anwana Mary Execution Creditors/Respondents
Mr. Okey Dennis
Nwabueze Nonye
And
Oluseye Opasanya, SAN
(Receiver/Manager Lonestar ————- 1st Defendant/ Execution Debtor
Drilling Nig. Ltd. in Receivership)
Lonestar Drilling Nig. Ltd. (In Receivership) ————2nd Defendant / Execution Debtor
Africa Export-Import Bank
Diamond Bank Interested Parties/Applicants
Representation:
O. G. Ojo for the Execution Creditors/Respondents
Dr. K.U.K Ekwueme with Dr. C.O. Okara for the Interested Parties/Applicants
RULING/JUDGMENT:
This is a post execution application filed on 8/10/2018, wherein the interested parties/applicants seek this Court’s discretion for the following orders:
An order granting them leave to be joined or heard as interveners;
An order discharging and setting aside the Ex parte order of attachment made by this Court on the 24th of September, 2018;
Such further or other orders as this Court may deem fit to make in the circumstances.
The grounds upon which these orders are sought are as follows:
The 1st Defendant is Receiver-Manager of the 2nd defendant.
The 1st Applicant is the security trustee appointed by a syndicate of lenders who availed credit facilities to the 2nd Defendant, Lonestar Drilling Nigeria limited.
By virtue of the appointment, all the assets of the 2nd Defendant, Lonestar Drilling Nigeria Limited now vests in the 1st Applicant, which makes it an interested party.
The 2nd interested party is the mortgagee of the Oil Rig 205 attached by the order of this Honourable Court made on 24/9/2018.
The law ranks the interest of the Applicants higher than that of the judgment creditors’. Consequently, the applicants enjoy priority over all other creditors of the judgment debtor, Lonestar Drilling Company Limited.
The interest of the lenders, as secured creditors over secured assets must prevail over the right of an unsecured creditor and as such there is no asset of the judgment debtor that is available to be attached by the judgment creditor.
A judgment cannot be enforced against the assets of a company in receivership, and
The writ of attachment is an abuse of the process of this Court.
In support of this application is an 18 paragraph affidavit deposed to by Similoluwa Somuyiwa, a legal Practitioner in the firm of Olaniwun Ajayi LP—the Applicants’ Counsel and five exhibits, as follows:
Exhibit SS1-Copy of security deed dated 17/8/2007.
Exhibit SS2-Copy of deed of legal mortgage dated 17/8/2007, exhibit SS2a- copy of certificate of first preferred legal mortgage dated 30/11/2009.
Exhibit SS3—Copy of Deed of Appointment of Receiver/Manager dated 31/7/2013.
Exhibit SS4—Copy of CTC of Court order dated 2/8/2013.
Exhibit SS5—Copy of Newspaper Publication.
The Execution Creditors (referred interchangeably as the Judgment Creditors), filed a Counter affidavit of 20 paragraphs deposed to by the 1st claimant and four exhibits, as follows:
Exhibit CA1-Photocopy of CTC of Court order.
Exhibit CA2-CTC of Memorandum of Appearance 1st judgment debtor.
Exhibit CA 3 (a)&(b)-photocopies of two Newspaper Publication.
Exhibit CA4—Photocopy of letter demanding the judgment.
They also filed a notice of preliminary objection on the 11th of October, 2018. The interested parties or interveners had on the 19th of October, 2018, filed a Reply on Points of Law to the Judgment Creditors’ written address, a written address in opposition to the Judgment Creditors’ Notice of Preliminary Objection and an Applicants’ Reply Affidavit to the Respondents’ Counter Affidavit.
On the 22nd of October, Dr. K.U.K Ekwueme with Dr. C.O. Okara approached this Court to move the pending motion and adopt same. Mr. O. G Ojo for the Judgment Creditors/Respondents however moved his notice of preliminary objection first before the main application by the interested parties was adopted.
For the purpose of this ruling, it shall be necessary to consider the fate of the pending Preliminary Objection first.
NOTICE OF PRELIMINARY OBJECTION:
The Judgment Creditors/Applicants (herein referred appropriately as the Objectors), applied by notice of preliminary objection dated 10/10/18, but filed 11/10/2018 as follows, that:
The application is an abuse of Court processes;
This Court lacks jurisdiction to determine the said motion as it lacks the enabling jurisdiction being functus officio.
Their Counsel raised two issues for determination in his written address, thus:
Whether this honorable court has jurisdiction to join the Applicants in a matter that has been determined on merit by another judge of a coordinate jurisdiction;
Whether it is an abuse of court process for a party that participated fully in a matter to attempt to change nomenclature in order to take advantage and to deceive the Court?
On issue one above, relying on all the processes filed by the parties, the learned Mr. Ojo first argued that the Judgment of this Court per Anuwe, J is a judicial pronouncement that is concluded and these applicants seek to reopen the case afresh. That this is the implication because this Court had already ordered for an attachment of the 2nd Judgment Debtor’s assets and the Deputy Sheriff of this court in exercise of the power conferred on him, executed and signed after the execution of the order granted by this Court. The execution took place in Sapele, Delta State. The order of execution was made on the 24th of September, 2018 and was carried out on the 28th of September, 2018. The subjects of the execution order are three rigs all belonging to the 2nd Judgment Debtor. Thus being the case, this Court lacks any jurisdiction to entertain this application now made by these parties as interveners/interested parties because doing so is akin to allowing them appear in a suit that was already determined by another judge before she was transferred from this jurisdiction. Allowing their application accordingly is also akin to sitting on appeal over the decision of a colleague with coordinate jurisdiction and this is not allowed.
More specifically, learned Counsel is convinced that given the stage of this matter which is post execution, this Court cannot begin to consider allowing the interested parties to be joined in because that will amount to sitting on appeal upon its decision. He cited the case of M.I.M BANK LTD. V. UNION BANK OF NIG. LTD (2004) 52 WRN 121 where he quoted Acholonu, JSC (Cum Esset Judex ).
He concluded on this issue by saying that the judgment given by a Court of competent jurisdiction is final and cannot be set aside except on appeal. Therefore, this application must be considered incompetent; per IKOTUN v. OGEDANMI (2008) 44 WRN 1 at 16-17.
On the second issue which is whether their application is not an abuse of Court process, the objectors here submit that it does seem to be an abuse of court process to make such an application as this after the Deputy Sheriff of this Court had levied execution on the 28/9/2018. By the records and processes availing this Court, it is accordingly convenient to find that the writ of execution was granted on the 24/9/2018 and levied accordingly on the 28/9/2018 by the officers of this Court.
Counsel submitted that the instant application constitute an abuse of court process, because it seeks to cause delay or to interfere with the course of justice; per OKOROCHA v PDP (2014) 26 WRN 1 at 66-7.
It was submitted further that these applicants were never strangers to the suit while it was pending as they donated their powers to the Receiver/1st Judgment Debtor/Respondent. This fact is purportedly not denied by them. It is therefore an abuse of Court process for a party who has been aware of a case where judgment was given since July 2018 to only now apply to be joined as a party in October, 2018 after execution was concluded. That the Supreme Court had pronounced in the case of RE: AROWOLO (1993) 2 NWLR (Part 275) 317 that a party may be joined as a person interested in a suit very early or midstream depending on when he knew of the proceedings. He said by virtue of the fact that the judgment of this Court Per Anuwe, J was pronounced in July 2018 on proceedings that lasted since 2014, the applicants must be estopped from denying knowledge of this suit now.
RESPONDENTS’ SUBMISSIONS:
In response, the Interested Parties/Respondents relying on their reply filed on 19/10/2018 submitted one issue for determination thus; whether the Applicants are entitled to the order to dismiss the interested parties’ motion dated 8/10/2018. They argued first on jurisdiction of this Court to entertain their application, that because they will be affected by the execution of this Court’s order, they therefore should be considered as interested parties. The case of MUDASHIRU AND ORS V. ONYEARU AND ORS (2013) 7 NWLR (part 1354) was cited. Their Counsel elaborated further that a person who has an interest to protect in the subject matter of an action/application can be joined by Court to protect his interest. In defining an “intervener”, the Supreme Court in TAIWO V. ADEGBORO (2011) 11NWLR (Part 1259) 562 at pages 577 – 578 said a person who was not originally a party in the suit but claims an interest in the subject matter, may come into the case to protect his rights and such can only be done with the direction of the Court.
Furthermore, that in MUDASIRU & ORS V. ONYEARU & ORS [Supra], the Appeal Court determined whether a party who was not a party at the hearing of a suit can be joined as an intervener during the execution stage of the judgment. According to the Court of Appeal at page 446-447, paras F-A, of the Case Report:
“Parties may be joined in a suit at any stage including the stage of execution. It is, therefore, not correct that after judgment, a party may not be joined. It can be done, even during an appeal; that is why we have a notice of appeal as an interested party by leave to appeal. This has a constitutional enablement”.
It was submitted on that the fact that a party interested in an asset on which execution is sought to be executed can apply at the execution stage of a judgment to protect its interest in the property as epitomized in the Sheriffs and Civil Process Act (SCPA), which is an Act that applies to this Court by virtue of section 2 of the Act. Therefore, like in section 88 of the SCPA which provides for garnishee proceedings (which is one of the modes of executing the judgment of a Court) which clearly allows a third party that has interest in the asset over which a garnishee order nisi is made to be joined by the Court to state its interest in the said asset, this Court too must find that these interested parties by extension of that provision, have such rights too. Accordingly, it is learned Counsel’s opinion that the above provision clearly shows that our law recognizes that third parties might have interests in an asset on which the execution of a judgment is sought to be made and such parties have the constitutional right to be heard pursuant to section 36(1) of the Constitution in relation the acclaimed interest in the asset.
It is further adumbrated that in BSA Travel Ltd v. Lonestar Drilling Nigeria Ltd (under the receivership of Mr Oluseye Opasanya, SAN), unreported, Suit No LD/2304CMW/16, the Lagos State High Court, coram the Honorable Justice Ogunsanya, in a Ruling delivered on 13 September 2018 held that a party who has a proprietary/security interest (such as the Applicants in the instant case) can intervene and be joined by the Court during garnishee proceedings to protect their interest in the asset on which execution is sought to be levied. I was urged to be persuaded by the Ruling of my brother.
It is further argued that the Notice of Preliminary Objection is misconceived and flawed since the main application does not seek to re-open the case determined by his lordship, Justice O.Y Anuwe nor is it an attempt to invite this honourable Court to sit on appeal over the said decision. That it is important to note the prayers sought in their motion as Interested Parties/Applicants and the grounds in support of the prayers which raise the issue whether the Applicants’ interest can legally take precedence over the Judgment Creditor’s/Respondent’s over the assets of the 2nd Defendant/2nd Judgment Debtor taking cognizance of the Respondents’ proprietary/security interest over the assets of the 2nd Judgment Debtor which rank in priority in law.
Also, that the second issue which they raised in their motion, is whether the Objector here can levy execution on the assets of the 2nd Judgment Debtor (a company in receivership) contrary to the settled principle of law that execution cannot be levied on the assets of a company in receivership. It was submitted that the prayers sought by the Respondents and the issues raised in the application do not in any way amount to an invitation by this honourable Court to re-open the case already determined by Justice O.Y Anuwe or to sit on appeal over the judgment in the said case, that the present motion does not challenge the judgment of Justice O.Y Anuwe.
Again, that contrary to the submissions by the objector, the law is trite that a court has the vires to set aside a writ of execution even after it has been executed. I was referred to the case of VASWANI TRADING COMPANY V. SAVALAKH & CO (1972) 12 SC 77 AT 82, where the Supreme Court made a clear pronouncement in that regard. That in UBN V. FAJEBE FOODS [1994] 5 NWLR (PT 344) 325 AT 345, the Court held that a Court of law has the vires to set aside a writ of attachment even where the writ has been executed. It is also submitted that execution of the judgment of Court on moveable property or chattel is not complete until the said moveable property or chattel is sold. This is because it is the sale that will divest the owner of the property of its/his proprietary interest in the property and complete the execution of the judgment of the Court by the Sheriff of Court. See DAVIS EX PARTE WILLIAMS [1872] 7 CH APP 314 AT 317. However, even where the attached property has been sold, it is trite that a court of law has the vires to set aside a writ of execution even after the attached property has been sold. See ARGOS (NIG) LTD V UMAR [2002] LPELR-593, 9-10, PARAS E-B.
Accordingly therefore, whether the Writ of execution in the instant case has been executed or not, this Court has the vires to set aside the said writ and the execution made pursuant thereto.
I have been asked to discountenance the cases of M.I.M BANK LTD V UNION BANK NIG LTD [2004] 52 WRN 121 AT 137-138 AND IKOTUN V. OGEDANMI [2008] 44 WRN 1 AT 16-17 cited by the Objectors as they are irrelevant in the instant case because the cases do not relate to joinder of an intervener during the execution of a judgment but relate to Courts of co-ordinate jurisdiction making conflicting orders over a case and a court sitting on appeal over the decision of a court of co-ordinate jurisdiction, respectively.
On whether these Respondents’ motion dated 08/10/2018 is an abuse of court process? It was submitted that the Respondents’ application dated 08/10/18 is not an abuse of court process contrary to the submissions of these Objectors. That the interested parties have clearly shown that a non-party to a suit can apply to intervene to challenge the execution of the judgment of a Court. See Mudashiru & Ors v Onyearu & Ors [Supra]. Further, the Respondents have shown that this Court has the vires to set aside a writ of execution that has been executed even when the attached property has been sold. See Vaswani Trading Company v. Savalakh & Co [Supra] and Argos (Nig.) Ltd v Umar [Supra]. I was urged to discountenance the Objectors’ submissions in this regard.
It was submitted that the Objectors’ submissions in his paragraph 4.03 – 4.06 of the written address to the NPO are misconceived. It is accordingly trite that the delegation of authority to an agent by a principal does not dispossess the principal from acting on the said interest as the legal interest continually resides in the principal. I have been asked to note that by virtue of the appointment of a Receiver Manager, the Receiver Manager does not automatically become the owner of the assets of the company; the legal ownership still resides in the donor of the power. The case of NWEKE & ANON V NWEKE [2014] LPELR-23563 (CA)was cited where it was accordingly held by the Court with respect to a Power of Attorney, that:
“The donee of the power does not become the owner of the property by virtue of that appointment. He remains the agent of the owner of the property even if the power is irrevocable and the ownership right of the property remains in the owner of the property”.
Thus, the fact that the 1st Judgment Debtor (Receiver/Manager of the 2nd Judgment Creditor) appointed by the Respondents was a party to the suit which judgment is sought to be executed does not preclude the Respondents from applying to protect their interest in the property on which execution is sought. It is submitted on that the interest being threatened is the proprietary/security interest of the Respondents over the assets of the 2nd Judgment Debtor and as such, the Respondents have the right in law to protect their interest without waiting for the Receiver/Manager to do so on their behalf. The attached assets accordingly vest in the Respondents by virtue of a Legal Mortgage concluded between the 2nd Judgment Debtor and the Respondents (Exhibit SS 2) which vests the Oil Rigs Delta 3 and 4 in the 1st Respondent as the Security Trustee, on the one hand and another Legal Mortgage concluded between the 2nd Judgment Debtor and a first preferred Legal Mortgage between the 2nd Judgment Debtor and the 2nd Respondent (Exhibit SS 2a).
Thus, the assets, subject of the attachment are vested in the Respondents and the Respondents have the legal right to protect their proprietary/security interest in the attached property.
Learned Counsel relying again on the decision in BSA TRAVEL LTD V LONESTAR DRILLING NIGERIA LTD (UNDER THE RECEIVERSHIP OF MR OLUSEYE OPASANYA, SAN) [SUPRA], the Lagos State High Court in accordingly dismissing a similar submission as the one being made by the Applicants in relation to the appointment of a Receiver/Manager by security trustees, held that the security trustees could still intervene to protect their proprietary/security interest in the asset over which execution is sought by the Judgment Creditor despite having appointed the Receiver/Manager and despite the Receiver/Manager having being aware of the pendency of the suit which judgment was sought to be enforced. I was urged to tow the rationale in the said judgment.
In conclusion, that the case of RE-AROWOLO [1993] 2 NWLR (PT 275) 317 relied on by the Objector is inapplicable as the present application is not sought to be used by these Respondents to delay or interfere with the course of justice but to uphold the course of justice. That the right to fair hearing is an entitlement in law even during the execution of the judgment of a court in order to protect their interest in an asset on which such execution is sought. Lastly, that the order granting leave to issue writ of execution affects the Respondents’ proprietary interests, guaranteed by section 41 of the 1999 Constitution (as amended) (the Constitution) and the Respondents are entitled to be heard to protect such proprietary/security interest.
Based on the foregone, I have been urged to discountenance and dismiss the Objector’s NPO and hear the Respondents’ motion on notice dated 08/10/18.
REPLY SUBMISSIONS:
In response to the foregone, the Objector filed a reply address and asked this Court to amongst others, find as follows:
That the case of MUDASHIRU AND ORD V. ONYEARU AND ORS (Supra) cited by the Respondents are distinguishable from this application and cannot be relied upon.
The case of TAIWO V. ADEGBORO (Supra) relied upon by the Respondents are inoperable to the application here.
He said Section 2 of the Sheriff and Civil Process Act cited by learned Counsel for the Respondents here is inapplicable to the application at hand.
Also, that Garnishee proceedings are different from any other forms of enforcement of judgments especially from a writ of Fifa, attachment etc as such the ingredients required for the grant of each are different. The court was urged to disregard the arguments proffered on garnishee proceedings in line with the case of PURIFICATION TECHNIQUES LTD V A.G. LAGOS (2004) ALL FWLR (PT 211) 1479 at 1493-4.
That the Respondents have not stated any provision of CAMA which states that execution cannot be levied against a Company in receivership.
That on the question of priority of interests over a judgment debtor’s assets, the 2nd Judgment Debtor in this case is not in liquidation and as such it’s assets can be attached to satisfy a judgment debt.
That the case of HABIB NIG. LTD V. OPOMULERO (Supra) cited by the Respondents is distinguishable from this case in that there, the subject matter was the funds realized from the sale of the properties of the Company under receivership and the funds belonged to a syndicate or consortium of bankers who had appointed the receiver.
That in this case, the Judgment Creditors sued the Receiver whereas in Habib’s case the receiver was not sued.
He further asked this Court to distinguish all the cited case laws from the case at hand in granting the NPO.
There must be an end to litigation and a party cannot even in privy, re-litigate a matter that has already been decided.
That the case of BSA TRAVEL LTD V. LONESTAR DRILLING NIG LTD (Supra) cited by learned Counsel to the Respondents is a decision of a High Court in a ruling that is not binding on this Court, and on a subject matter which is accordingly alien to this case.
That this application to set aside the execution order would have been best brought by the Judgment Debtors themselves and not by these current applicants.
That this application must be upheld in order to dismiss the motion on notice filed by the Respondents.
COURT’S DECISION ON THE NPO:
Having extensively read through the notice of preliminary objection and submissions as well as the response in opposition to same, I find a few issues worthy of mention and they are:
These Objectors could have incorporated and raised this application in their written address to their Counter affidavit instead of filing it separately like they have done. The law as to the filing of a notice of preliminary objection has for long advanced. The position of the law from the pronouncements of the apex court is to the effect that, a notice of preliminary objection as to the competence of an appeal may validly be raised in the respondents brief. It is therefore settled that where a preliminary objection is incorporated in a brief of argument and the requisite clear days notice are given, the formal filing of a notice of preliminary objection is unnecessary. Therefore, the failure to file a notice of preliminary objection will not render the notice in a respondent’s brief ineffective. See ECO INTERNATIONAL BANK PLC V. NULGE, JALINGO LGC AND ORS (2014) LPELR-24171(CA). Most of the arguments made in the preliminary objection were also made in the main application brought by way of a motion on notice. Therefore, the exercise undertaken here is a subterfuge even though permissible by the Courts.
Much as I agree with the Respondents Counsel’s submission that an interested party may apply to be joined in a suit at any stage of the proceedings including on Appeal for the first time, but like I initially observed from the get go, this application is a post execution application and it does seem that the Respondents to the preliminary objection may have forgotten or are unaware that a different procedure applies at this stage as opposed to when the matter is pending before the Court. It is my honest opinion therefore that the application by way of a motion on notice to join these interveners/interested parties is an irregular one not contemplated by the rules of this Court.
Flowing from the first observation therefore, the properties (and I shall come to those soon,) which are purportedly the subject of the execution order granted by this Court on the 24/9/2018, technically moved to the possession of the Deputy Sheriff of this Court. Appropriately, Order 56 Rules 1 (b) and 2 (1) of this Court’s Rules 2017, shall apply accordingly.
Also, by Section 34 of the Sheriffs and Civil Processes Act which provides as follows, if a claim is made to or in respect of any property attached in execution under process of a court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the sheriff, as well as after any action brought against him, issue a summons calling before the court the party at whose instance the process issued (that is the Execution Creditor).
On one of the differences between them, secured creditors, if not the appointer, will file their claims with the receiver. Unsecured creditors may commence an action against the receiver for the recovery of debt. Where the creditors have recovered judgments, they may levy execution on the assets of the company.
A receiver or liquidator appointed under these procedures has no obligation to retain the employees of an insolvent company. Where the employees are disengaged, he has a duty under the Act to settle all their wages and salaries in respect of the services rendered to the company in priority to all other debts.T he status of employees’ contracts under a scheme of arrangement would depend on the terms of the scheme document. But generally, outstanding debts owed as salaries of individual staff and employees of a Company in receivership, rank higher in the order of priority of debts to be discharged.
A certified copy of the ruling by the LAGOS State High Court in BSA TRAVEL LTD V LONESTAR DRILLING NIGERIA LTD (UNDER THE RECEIVERSHIP OF MR OLUSEYE OPASANYA, SAN) [SUPRA]cited by the learned Counsel to the Respondents here was never produced before this Court to form the basis of any opinion that I may eventually arrive at. I cannot therefore rely on the submission to follow the rationale purportedly applied therein.
In reaching a decision on the Notice of Preliminary Objection raised, I too adopt the two issues raised for determination which are:
Whether the motion brought by the interested parties is an abuse of judicial process?
Whether this Court become functus officio upon the execution of the writ of attachment by the Sheriff of this Court.
On issue one, considering the duty on me to determine all material issues properly raised, and without the need of setting out the arguments already made in that regard, I find that at this stage, the instant application asking to join third parties as interveners who claim to have an interest in the property sought to be attached in execution of judgment, makes it an interpleader proceeding: see WEST AFRICAN COTTON LTD v YANKARA (2008) 4 NWLR (pt 1071 323. The logical question that arises here is: what is the proper procedure to commence interpleader proceedings in the National Industrial Court of Nigeria?
Order 56 of this Court’s Rules 2017 provides for the appropriate procedure to follow. The said Order provides that:
(1) Where –
….
A claim is made to any money or chattels taken or intended to be taken by the sheriff in execution under a process or to the proceeds or value of any such chattels by a person other than the person against whom the process is issued, the person under liability as mentioned in sub rule 1(a) of this rule, or as the case may be, the Sheriff, may apply to the Court for relief by way of interpleader.
(1) any person making a claim to or in respect of any money taken in goods or chattels taken or intended to be taken under process of the Court or to the proceeds or value of any such money or chattels, shall give notice of such a person’s claim to the Sheriff charged with the execution of the process and shall include in the notice a statement of the person’s address which shall be the person’s address for service.
(2) on receipt of a claim made under this rule, the Sheriff shall forthwith give notice thereof to the execution creditor(s) and the execution creditor(s) shall within 7 clear days after receiving the notice, give notice to the Sheriff informing the Sheriff as to whether the execution creditor admits or disputes the claim.
From the above provision, what the interested parties in the subject of this execution are required to do is to notify the sheriff of their adverse interests. It is the sheriff who upon determining that there are issues requiring this Court’s direction that will apply to Court. It goes without saying that the sheriff is meant to be an integral party in the procedure.
By Order 56 Rule 3 any application for relief under this order shall be by originating summons unless made in a pending action in which case it shall be made by a motion. There are certain conditions an applicant must meet which include the deposition to verifying affidavits but most importantly the Court has the ultimate discretion to grant the application which discretion of course must be judicial and judicious.
Incidentally, the foregone legal opinion was never canvassed by the objectors in their arguments on the first issue for determination. Regardless of that fact, this Court cannot overlook the question of whether the procedure employed by the interested parties in this application is proper. In quick response to that question, it is obvious that the process of applying to be joined as interested parties by way of a motion on notice is improper by simple reason of the fact that the execution order of 24/9/2018 had already been effected on the 28/9/2018 and it is therefore safe to presume that there is no pending action before this Court requiring any party or the Court to be placed on notice.
Perhaps it is even arguable that the Court may ignore the default here in the filing of this application in the interest of Justice, but the fact remains that Order 56 of this Court’s Rules is a specific provision meant to guide the parties of their legal positions and besides, the requirement of including the Sheriff as a party in the proceedings cannot be circumscribed. I therefore do not think it is the duty of this Court to perform the task meant strictly for the disputants. With this said I do in fact believe that the application brought by way of a motion on notice dated 8/10/2018 is irregular and is without question of doubt, an abuse of judicial process.
On whether this Court is functus officio with regards to the application filed to set aside the execution order of 24/9/2018 and without derailment from the obvious reason that I had already concluded that this application is legally defective; but for the sake of making some useful pronouncement on the arguments made by Counsel (particularly by the Interveners/Respondents), I have considered the authorities submitted in this regard and make the following judicial opinions as follows:
In the case of ARGOS (NIG.) LTD V. UMAR (Supra), the Court of Appeal was faced with facts separate from the one currently before this Court. In that case, a notice of appeal as well as a stay of execution had been filed before the trial Court but the Court still granted the writ of attachment of the Judgment Debtor’s properties in the pendency of the motion for stay prompting the appellate Court to pronounce inter alia that “the issuance of a writ of attachment during the pendency of a motion for stay of execution is to say the least irregular. It is contrary to Nigeria’s legal system and is not in accord with the rules of natural justice. The proper thing to do, it was further admonished, was to “hear the motion and rule on it. If it is refused, the writ of attachment and sale of goods could be issued. It is wrong to issue the writ without hearing and ruling on it”. In that case, the issuance of the writ of attachment and the sale of the applicant’s goods is definitely an abuse of Court process since it was intended to overreach the applicants.
The writ of attachment issued by this Court had ordered the attachment of the properties of the judgment debtors and even though the Company is in receivership, the judgment sought to be levied is the salaries and entitlements of the staff and employees of the 2nd Execution Debtor. The case of HABIB NIG. BANK LTD. V. OPOMULERO cited and relied upon by learned Counsel to the interveners/interested parties here, is with all due respect, not on all fours with the circumstances of this case. In that case, the Appellant as Garnishee, had on the instructions of the consortium or syndicate of lenders to the Company – Food Oil Ltd., defrayed the expenses of the Counsel representing them, Messrs Paul Usoro and Co., whereupon the trial Court proceeded to order the Appellant/Garnishee to pay the gross judgment debts (the total amount of the purportedly consolidated judgments) by making an order absolute in that regard. One of the basis for which the appeal was considered was whether the Garnishee bank had been given sufficient notice of the trial Court’s order to preserve the receiver’s bank accounts held by the Garnishee before they paid monies out of it on the instructions of the Company’s consortium of lenders and whether the trial Court had the power to order the payment of money which exceeded the gross judgment sum. The appellate court also deprecated the procedure of consolidating judgments of separate litigants even though they were against the same Defendants. The appellate Court also pronounced that the money in the Garnishee’s custody, belonged to the consortium or syndicate of lenders to the Company in receivership, i.e. Foods Oil Ltd., therefore the order absolute should not have been made against monies not owned by the Judgment Debtor. Adamu JCA pronounced further that the amount under the account had been exhausted by payment to the legal firm of Messrs Paul Usoro for their legal services to the consortium of bankers prior to the service of order nisi on the appellant. Even if the fees were not paid prior to the service, they could still be paid as such fees are not attachable by a garnishee order. The remark made by the appellate Court that it is trite that a judgment creditor cannot levy execution against the properties of the judgment debtor which is already under receivership, is subject to exceptions one of which is if the debt sought to be executed, is the adjudged salaries and entitlements of the judgment creditors which is what the subject of this judgment is in any case.
None of the judicial authorities/case laws cited by both Counsel are reflective of an execution carried out in pursuance of a valid judgment of the National Industrial Court of Nigeria. It is arguable that in the absence of such case laws, there is no justification to believe that the writ of Fifa ordered by this Court on the 24/9/2018 is illegal or irregular since there was no pending stay of execution or notice of appeal at the time it was made. Therefore, an application to set aside the execution does require special consideration and circumstances since generally a Court will not set aside the issuance of a writ of attachment which has already been levied or executed.
The proposition by the learned Counsel to the Objectors that setting aside the execution carried out on the 28/9/2018 by the Sheriff of this Court amounts to sitting on appeal over an already executed order now seems more probable and true. I therefore do not have jurisdiction to consider the motion to join these interveners or to set aside my order of 24/9/2018.
Giving the above reasoning and opinions therefore, I do uphold the preliminary objection and accordingly dismiss the motion on notice filed by the interveners/interested parties.
The execution carried out on the 28/9/2018 is hereby declared to be in order.
Ruling delivered in Owerri this 5th day of November, 2018.
Hon. Justice Ibrahim Suleiman Galadima
Presiding Judge
