Download PDF
IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA IN THE LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS BEFORE HER LORDSHIP: HON. JUSTICE O.A OBASEKI-OSAGHAE DATE: September 14, 2015 SUIT NO. NICN/LA/175/2015 BETWEEN EJEMBI JOHN AGBO JUDGMENT CREDITOR/RESPONDENT AND GLOBAL FLEET OIL & GAS LIMITED JUDGMENT DEBTOR/APPLICANT REPRESENTATION Olatunji Adeyeye for Judgment Creditor. Mofesomo Tayo Oyetibo for Judgment Debtor. RULING By a motion on notice dated 8th of December, 2014 brought pursuant to Order 11 Rule 1, Order 30 Rule 1 of the National Industrial Court and Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended the judgment debtor/applicant seek the following reliefs: An order setting aside the garnishee order nisi made by this court on 11th day of November, 2014 in enforcement of the judgment of this court delivered on 7th March, 2013, whilst the applicant’s motion on notice dated 14th June, 2013 seeking to restrain the judgment creditor from taking steps to enforce the said judgment is still pending at the Court of Appeal in Appeal No. CA/L/513/13 GLOBAL FLEET OIL & GAS v. EJEMBI JOHN AGBO. ALTERNATIVELY An order staying further proceedings in respect of the enforcement of the judgment of this court delivered on 7th March, 2013, either by way of garnishee proceedings or any other proceedings howsoever called, pending the determination of the applicant’s appeal filed against the said judgment of this court in Appeal No. CA/L/513/13 GLOBAL FLEET OIL & GAS v. EJEMBI JOHN AGBO. And for such further other orders as this court may deem fit to make in the circumstances. The grounds for the application are as follows: 1. This court delivered its judgment in this suit on 7th March, 2013 in favour of the claimant. 2. By a notice of appeal date 18th April, 2013 the defendant appealed to the court of appeal against the said judgment and the appeal was entered in the court of appeal as Appeal No. CA/L/513/13 GLOBAL FLEET OIL & GAS v. EJEMBI JOHN AGBO. 3. At the court of appeal the defendant also filed a motion on notice seeking to restrain the claimants from enforcing the judgment of this court delivered in this suit, which motion is still pending before the court of appeal. 4. Meanwhile, by a motion ex-parte dated 17th September, 2014 the claimant has commenced garnishee proceedings in this court and consequently obtained a garnishee order nisi on 11th November, 2014. 5. The applicant obtained the order nisi from the court on 11th November, 2014 without disclosing to this court that there is a motion on notice filed by the applicant pending at the court of appeal. 6. The hearing and/or determination of this garnishee proceeding will render the pending appeal as well as the motion at the court of appeal academic and violate the applicant’s constitutionally guaranteed right to fair hearing. 7. It is in the interest of justice and the rule of law for this application to be granted. The motion is supported by 11 paragraph affidavit, Exhibit and a written address. In reaction, the Claimant/Judgment Creditor filed a Reply on Points of Law dated and filed on 16th December, 2014. The judgment debtor filed a Reply on Points of Law dated and file don 16th December, 2014. Learned Counsel to the judgment debtor raised one issue for determination by the court as follows: “Whether in the circumstances of this case, this court ought not to grant the prayer sought in this application” Learned Counsel submitted that after the delivery of judgment the defendant appealed to the court of appeal and filed an application for stay of execution of the said judgment, and despite the pendency of the appeal and the said motion, the claimant commenced garnishee proceedings before this court to enforce the judgment. He submitted that the procedure adopted by the claimant is calculated at misleading the court and placing the court on a course that is unacceptable, citing the case of Mohammed V. Olawunmi (1993) 4 NWLR (Pt. 287) 254. He further submitted that the pendency of the motion on notice in the court of appeal is a material fact that ought to have brought to the attention of the court and which the court ought to have considered in deciding whether or not the garnishee order nisi made on 11th November, 2014 ought to have been made. He submitted that it is trite that the court will set aside an ex parte order which is granted if found that the applicant in obtaining the order suppressed material facts at the time of making his application for the order. He relied on U.T.B Ltd V. Dolmetsch Pharm Nig Ltd (2007) 16 NWLR (Pt. 1061) 520, R. Benkay Nig Ltd V. Cadbury Nig Plc (2006) 6 NWLR (Pt. 976) 338 and Aisha Animashaun V. Aisha Aliu Bakare (2010) LPELR-A/L/263/04. He submitted that by proceeding to commence these garnishee proceedings, the claimant has not only attempted to make this court usurp the powers of the court of appeal, he has completely ignored the motion on notice at the court of appeal seeking to restrain him from enforcing the judgment of this court and if this allowed to happen the motion before the court of appeal will become useless. He relied on Governor of Lagos State V. Ojukwu (1996) 1 NWLR (Pt. 18) 621. He submitted that it is a situation such as that of the instant case which the decisions of the Supreme Court in Mohammed V. Olawunmi (supra) and Governor of Lagos State V. Ojukwu (supra) have warned against and forbidden. Learned Counsel submitted that the continued hearing and determination of the garnishee proceedings will violate the applicant’s constitutional right of fair hearing under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended. He continued that the applicant’s right of fair hearing will be violated because if these proceedings are allowed to continue the appeal and motion still pending before the court of appeal will become otiose without the applicant having had full opportunity to present its case before the court of appeal. He relied on the case of Audu V Federal Republic of Nigeria (2013) LPELR)-19897 (SC), Nwoko V Oruma (1990) 3 NWLR (Pt.136) 22 and Akinfe V The State (1988) 3 NWLR (Pt. 85) 729. He submitted that to forestall a situation in which the applicant’s constitutionally guaranteed right to fair hearing this application ought to be granted by this court. In his reply address, the Claimant’s Counsel submitted that the legal argument of the applicant are misplaced as he did not advert his mind to the fact that a garnishee proceeding is entirely different and that it is simply a matter between the judgment creditor and the garnishees. He relied on Nigeria Agip Oil Co. Ltd V. Ogini (2010) LPELR -9141 (CA). He submitted that the court must consider whether or not there is an order of stay of execution emanating from the court of appeal in determining this application. He submitted that in the absence of a valid order of stay this court has the power to continue and conclude the garnishee proceedings. He submitted that a motion for stay of execution does not operate as a stay of execution. That a garnishee proceeding is a separate suit which bothers on enforcement and the appeal itself bothers on the substantive suit. He continued that the applicant herein cannot hold the court to ransom for his failure to obtain an order for stay of execution. He added that the applicant had filed a motion for stay of execution dated 18th April, 2013 before this court but voluntarily withdrew same on the 19th July, 2013 when the matter came up. He submitted that the applicant cannot complain of lack of fair hearing when it has deliberately gone to sleep simply because of a pending notice of appeal and a motion for stay of execution at the court of appeal that the applicant has deliberately abandoned. He also relied on the above case of Audu V. Federal Republic of Nigeria (supra) to submit that a party who failed to take opportunity presented by the law cannot allege breach of fair hearing. He urged the court to dismiss this application and proceed with the garnishee proceeding. In his reply on points of law, Learned Counsel for the applicant submitted that what the applicant is seeking is not to be heard in the garnishee proceedings, rather the applicant is challenging the propriety of the garnishee proceedings ab initio on the ground that due to the pendency of the applicant’s appeal, this court lacks the jurisdiction to enforce the judgment that is the subject matter of the appeal. He submitted that appeal in this case has been entered at the court of appeal and it has implication on the jurisdiction of this court to enforce the judgment that is subject matter of the appeal. He relied on the case of Ezeokafor V Ezeilo (1999) 9 NWLR (Pt. 619) 513 and Order 4 Rule 11 of Court of Appeal Rules, 2011. He submitted that the implication of the entry of the applicant’s appeal is that this court lost to the court of appeal any jurisdiction it previously had with respect to the subject matter of the dispute between the parties. He submitted that if the claimant/respondent wished to take out enforcement proceedings against the applicant in respect of the judgment of this court, the only court open to him is the court of appeal. He relied on the case of West African Examinations Council (WAEC) & Ors V Mrs. Nkoyo Edet Ikang & Ors (2011) LPELR-5098 (CA). He submitted that following the WAEC matter that a lower court cannot even make absolute a garnishee order nisi it has made once an appeal is entered, the logical corollary is that such a lower court cannot make the order nisi in the first place once the order nisi is predated by the entry of the appeal at the higher court. He urged the court to reject the argument of the claimant/respondent in this regard. On the argument of the claimant/respondent that pendency of application for stay of execution is not a bar to garnishee proceeding, Counsel submitted that upon entry of the appeal at the court of appeal, this court lost to that court the jurisdiction to hear any application by the applicant in respect of that judgment. He submitted that it is untenable in law to suggest that the withdrawal of the applicant’s application for stay that was filed in this court which had at that point lost jurisdiction to hear the application creates leeway for the enforcement of the same judgment. He further submitted that the pendency of the application for stay of execution does bar the enforcement of that judgment prior to the determination of that application for stay. He submitted that once there is an application for stay same must be determined before the judgment that is the subject matter of the application can be enforced. He relied on West African Examinations Council (WAEC) & Ors V Mrs. Nkoyo Edet Ikang & Ors (supra). He urged the court to grant this application. I have carefully considered the processes filed, the argument of the parties and the authorities relied upon. The issue for determination is whether the court has the power to set aside its garnishee order nisi made on 11th November, 2014. This court delivered its judgment in this matter on 7th March, 2013 in favour of the claimant. The claimant/respondent initiated the enforcement of the said judgment through garnishee application which led to the grant of garnishee order nisi against the garnishees on 11th November, 2014 more than a year after the judgment was delivered. By this application, the applicant is seeking the order of this court setting aside the order nisi earlier issued by this court. In pursuance of the order nisi, all the garnishees filed their respective affidavit to show cause and same were heard on 9th December, 2014 by this court. The applicant/judgment debtor contended that it filed an appeal at the court of appeal and an application dated 13th June, 2013 before the court of appeal for stay of execution of the judgment of this court as well as to restrain the respondent from enforcing the judgment of this court whether by garnishee proceedings or otherwise. The judgment creditor/respondent in his reply contended that an application for stay of execution does not operate as a stay of execution. The principle of the law is that, the judgment debtor/applicant is insignificant in a garnishee proceeding and not expected or required to respond to garnishee order nisi or absolute. This is so because even if the judgment debtor is a party to the substantive suit, he is not a necessary party to the garnishee proceedings. The court held in the case of UBA Plc V. Ekanem (2010) 6 NWLR (Pt. 1190) 207 that: “A judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the judgment creditor in satisfaction of the judgment debt he owes the judgment creditor. The judgment debtor is not the one requested to appear before the court to show cause why the order nisi should not be made absolute. It is only the garnishee, and only the garnishee is expected to inform the court if there is any third party’s interest in the said judgment debtor’s money in its custody. So, in all ramifications, it is only the garnishee that is expected to react if the laws was not properly followed or observed” Similarly, the applicant made heavy weather on its so-called application for stay of execution and notice of appeal pending at the court of appeal. It has been held by the court that pendency of an application for stay of execution does not preclude the judgment creditor from commencing garnishee proceedings for the purpose of recovering a judgment debt. The court held in Purification Tech. (Nig) Ltd V. A.G Lagos State [2004] 9 NWLR (Pt. 879) 665 that: “…the existence of an application seeking for an order of stay of execution of a judgment does not preclude a judgment creditor from seeking to use garnishee proceedings to enforce the judgment. In the instant case, the contention of the respondent that the appellant was not entitled to enforce the judgment in its favour by garnishee proceeding because the respondent had filed an application for stay of execution is untenable” The applicant herein being a judgment debtor is a mere busy body. This application is devoid of any merit as the only aim is geared towards depriving the claimant/judgment creditor from enjoying the fruit of his judgment. I hold that this court does not have the power to set aside the order nisi made on 11th November, 2014. This application is hereby dismissed in its entirety. The cost of N50,000.00 (Fifty Thousand Naira) is awarded against the judgment debtor/applicant in favour of the judgment creditor/respondent. Ruling is entered accordingly. Hon. Justice O.A Obaseki-Osaghae Presiding Judge