IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 19TH DAY OF JULY, 2019
SUIT NO: NICN/MKD/20M/2018
BETWEEN:
1. MR. PHILIP SHAGBA IGBADOO
2. MRS LADI GRACE ACKA………….JUDGMENT CREDITORS/APPLICANTS
AND
KEYSTONE BANK LTD..........................JUDGMENT DEBTOR/RESPONDENT
REPRESENTATION:
1st Judgment Creditor
Other parties absent
D.V. Sefa Aii Esq. with D.O. Joseph Esq. for the applicants
M.O. Ozueh Esq. for the Respondent
RULING
This ruling is on the post judgment application filed by the judgment creditors/applicants. The application is dated 31/12/2018 and was filed on 07/01/2019. By the said application, the applicants are asking the court for the following reliefs:
"1. An order of the court granting leave to the judgment creditors/applicants to issue writ of execution attaching/seizing the immovable properties of the judgment Debtor/Respondent
herein mentioned for the purpose of being sold to satisfy the balance of the judgment debt plus accrued interest in the sum of N358,583,314.08 (Three Hundred and Fifty Eight Million, Five Hundred and Eighty Three Thousand, Three Hundred and Fourteen Naira, Eight Kobo) except the balance of the judgment debt is paid into the Counsel’s Clients’ account No ‪4011064766 with Fidelity Bank Plc in the title OKPALE S. OJIKPA & ASSOCIATES (CLIENTS ACCOUNT).
2. An order attaching/seizing the immovable properties of the Judgment Debtor/Respondent herein mentioned for the purpose of being sold to satisfy the balance of the judgment debt plus accrued interest in the sum of N358,583,314.08 (Three Hundred and Fifty Eight Million, Five Hundred and Eighty Three Thousand, Three Hundred and Fourteen Naira, Eight Kobo) except the balance of the judgment debt is paid into the Counsel’s Clients’ account No ‪4011064766 with Fidelity Bank Plc in the title OKPALE, S. OJIKPA & ASSOCIATES (CLIENTS ACCOUNT). The properties are:
¡. Bashorun MKO Abiola House, Plot 786, 5th Street, Central Business District, Abuja.
¡¡. Plot No 76 IyorchiaAyu Road, Wurukum, Makurdi, Benue State.
¡¡¡. The Judgment Debtor’s Building housing her branch office at after Hospital Junction, Jos road, Lafia, Nasarawa State.
3. An order that except the balance of the judgment debt is paid and/or consequent upon any act on the part of the Respondent occasioning the further delay, the balance of the judgment debt shall continue to attract interest at the rate of 50% from date of the order until same is fully paid.
ALTERNATIVELY TO PRAYERS 1 AND 2
4. An order that the 50% post judgment interest claimed by the judgment creditors/applicants in suit no NICN/MKD/02/2015, which claim along with other claims the court held the judgment Creditors/Applicants “…have proved…and are entitled to… and dare to so hold” in the judgment delivered on the 1st day of May, 2015, be calculated and paid on the judgment debt in the suit now amounting to the total sum of N358,583,314.08 (Three Hundred and Fifty Three Million, Five Hundred and Eighty Three Thousand, Three Hundred and Fourteen Naira, Eight Kobo) until the whole amount is finally paid.
5. An order that except the above sum outstanding is paid to the Judgment Creditors/Applicants vide their Counsel’s Clients’ account No ‪4011064766 with Fidelity Bank Plc in the title OKPALE, S. OJIKPA & ASSOCIATES (CLIENTS ACCOUNT) within Seven (7) days of the order, the properties in paragraph 2 hereof shall be forthwith attached and be sold to satisfy the debt plus the interest that shall then accrue at 50% plus the cost of the execution as shall be fixed by the court.
6. And for such further order or other orders the Honourable Court may deem fit to make in the circumstance of this case."
The grounds for the application were stated to be thus:
¡. This court entered monetary judgment for the applicants against the Respondent since the 21st day of MAY, 2015, consequent upon which the Applicants demanded immediate payment from the Respondent so as not to suffer the accrual of interest thereon at the rate of 50% allowed and/or not denied by the Court.
¡¡. That consequent upon the failure, refusal and/or neglect by the respondent to pay the judgment debt, the Applicants obtained an order nisi from the Honourable Court sitting at Awka, Anambra State on the 15th day of July 2015 against the Central Bank of Nigeria attaching the funds of the Respondent at the time the Judgment debt plus the accrued interest of 50% was in the total sum of about N83,974,623.50.
¡¡¡. That due to the objections filed by the Central Bank of Nigeria and the respondent as to the jurisdiction of the court to hear the garnishee proceedings, same could not be made absolute, the certificate of Judgment was obtained on the 12th day of July 2016 and same registered in the Federal High Court Makurdi on the 1st day of August, 2016 as Suit No. FHC/MKD/NRJ/01/2016 and the garnishee proceeding in this court withdrawn and another one filed at the Federal High Court, Makurdi at the time the Judgment debt plus the accrued interest was N151,‪779.307.17.
¡V. That the Federal High Court declined to entertain the garnishee proceedings on the ground that this Honourable Court being a court of coordinate jurisdiction has the jurisdiction to enforce her judgment and that the requisite consent of the Hon. Attorney General of the Federation was not obtained.
v. That consequent upon the above, this Honourable Court was again approached by registering the certificate of judgment at the Abuja Judicial Division but transferred to Makurdi Division and another order Nisi obtained on the 13th day of December, 2016 in Suit No. NICN/ABJ/534M/2016 at the time the judgment debt plus the accrued interest was N164,727,116.95 and which order Nisi was made absolute on the 23rd day of May, 2017.
v¡. That both the Central Bank of Nigeria and the Respondent appealed against the order absolute, while the appeal of the Central Bank of Nigeria was upheld and the order absolute set aside on the 9th day of November 2017 on the grounds of want of jurisdiction and abuse of court process, that of the Respondent was dismissed on the 17th day of September, 2018 for want of diligent prosecution.
v¡¡. That on the 2nd day of July 2018 the appeal of the Respondent against the Judgment of this Court delivered on the 21st day of May, 2015 was dismissed and the judgment affirmed consequent upon which the Applicants vide the letter dated 4th day of July 2018 wrote the respondents demanding the payment of the Judgment debt plus the accrued interest which was then in the total sum of N374,953,090.34.
viii. That upon the receipt of the above referred letter, the Judgment Debtor only paid the sum of N78,091,037.00 leaving out the sum of N296,862,053.00 out of the total sum then due and demanded.
ix. That vide the letter dated the 18th day of September, 2018, the Applicants again demanded the immediate payment of the balance so as not to suffer further accrual of interest which letter was not benefitted with a response hence this application.
x. That the Respondent as a Banking institution do(sic) not have sufficient movable property or such movable properties that can be conveniently attached and sold to satisfy the balance of the judgment debt which now stands at N358,583,314.08.
xi. That the respondent is the owner and in occupation of the properties situated and lying at (1) Bashorun MKO Abiola House, Plot 786, 5th Street, Central Business District, Abuja (2) No 76 IyorchiaAyu Road, Wurukum, Makurdi and (2) the Judgment Debtor’s building housing her branch office at after Hospital Junction, Jos Road, Lafia, Nasarawa State.
x¡¡. That except this order is granted, the Respondent shall not obey fully the Judgment of this Court affirmed by the Court of appeal by paying the balance.
xiii. The Respondent’s application for stay of execution of the judgment was dismissed on the 30th day of September 2015.
xiv. This court after resolving all issues in favour of the judgment creditors/Applicants herein held that “…the claimants have proved their case and are entitled to their claims; and I dare to so hold”, which claims includes the 50% post judgment interest.
xv. The Judgment Creditors/Applicants in their bid to enforce the judgment in their favour before this court vide garnishee proceedings had included the 50% post judgment interest and this court had granted the orders attaching the funds of the Judgment Debtors with the 50% post judgment interest.
xv¡. That though the Court of Appeal in her judgment of the 9th day of November, 2017 set aside the order nisi and order absolute, the court emphatically restated the fact that “interest of 50% per annum was awarded as post judgment interest” by this Court in her judgment of the 21st day of May 2015.
xv¡¡. The Court of Appeal also in the appeal against the judgment of this court, in her decision delivered on the 2nd day of July, 2018 emphatically and unequivocally restated the judgment of this court thus:
“This appeal was lodged against the judgment of the National Industrial Court sitting in Awka coram Waziri Abali J. in Suit No. NICN/MKD/02/2013 in which the claims of the respondents (Judgment Creditors/Applicants herein) were granted against the appellant”. The claims of the Judgment Creditors/Applicants that were stated to have been granted against the Judgment Debtor include the 50% post judgment interest.
xviii. That this Court held that “…the claimants have proved their case and are entitled to their claims; and I dare to so hold”, which claims includes the 50% post judgment interest, the Court inadvertently omitted to specifically pronounce on the interest claimed as it did the other claims, neither did the Court specifically pronounce that the Judgment Creditors/Applicants are not entitled to the post judgment interest.
xix. That in subsequent enforcement proceedings taken out by the Judgment Creditors/Applicants, this Court had granted orders taking into accounts the 50% post judgment interest.
xx. That in appeals Nos. CA/MK/187/2017 and CA/MK/54/2015 the court of Appeal held respectively, with respect to the judgment of this court that Interest of 50% per annum was awarded as post judgment interest and“…the claims of the respondents (Judgment Creditors/Applicants herein) were granted against the Appellant”, which judgment we now seek to enforce.
xxi. It is the interest element of the judgment that accrued and is continuing to accrue due to the failure, neglect and/or refusal of the judgment Debtor to pay the judgment debt forthwith, that is being to be enforced (Sic) by this application.
Accompanying the application, the applicants filed a 27-Paragraph Affidavit in support of the application. Mr. Philip Shagbaa Igbadoo, the 1st Judgment Creditor/Applicant reflects particularly in Paragraphs 2 to 24 the following deposition:
"2. That I know as a fact that we filed a complaint against the Respondent herein on the 7th day of January, 2013 attached herewith as Exhibit 1.
3. That I know as a fact that this Court entered monetary judgment for us against the Respondent since the 21st day of May 2015, when it held that we proved our case and that we are entitled to our claims, which claims are in the total sum of N78,091,037.00 made up of the special and general damages and 50% post judgment interest. The judgment is attached herewith as Exhibit 1a.
4. That consequent upon the tenor of the judgment, we through our Counsel demanded the immediate payment of the judgment debt from the Respondent so as not to suffer the accrual of interest claimed thereon at the rate of 50% which the court held proved. The letters of demand to the Respondent’s Counsel and the Respondent are hereby attached as Exhibits 2, 3 and 4.
5. That I know as a fact that the Respondent’s application for stay of execution of the judgment was dismissed since the 30th day of September, 2015 still the Respondent failed, refused and/or neglected to pay the judgment debt. The ruling is attached herewith as Exhibit 5.
6. That consequent upon the failure, refusal and/or neglect by the Respondent to pay the judgment debt, we obtained an order Nisi from this Honourable Court sitting at Awka Judicial Division on the 15th day of July, 2015 against the Central Bank of Nigeria attaching the funds of the Respondent at the time the Judgment debt plus the accrued interest at the rate of 50% was in the total sum of about N83,974,623.50. The motion Exparte and the order nisi are hereby attached as Exhibits 6 and 7 respectively.
7. That due to the objections filed by the Central Bank of Nigeria and the Respondent as to the jurisdiction of the Court to hear the garnishee proceeding, same could not be made absolute. The certificate of judgment was obtained, registered in the Federal High Court Makurdi and the garnishee proceeding in this Court withdrawn and another one filed at the Federal High Court, Makurdi at the time the judgment debt plus the accrued interest was about N151,779,307.17. The said certificate of judgment and proceedings withdrawing the garnishee proceedings are hereby attached as Exhibits 8 and 9.
8. That the Federal High Court declined to enter the garnishee proceeding on the grounds that this Honourable Court has the jurisdiction to enforce her judgment and that the requisite consent was not obtained. The ruling is hereby attached as Exhibit 10.
9. That consequent upon the above this Honourable Court was again approached, the certificate of judgment was registered at the Abuja Division and another order Nisi obtained in Suit No. NICN/ABJ/354M/2016 on the 13th day of December, 2016, after same was transferred to Makurdi, at the time the judgment debt plus the accrued interest at the rate of 50% was N164,737,116.95 and which order Nisi was made absolute on the 23rd day of May 2017 despite objections by the Garnishee and the Respondent. The order nisi and the ruling making the order nisi absolute are hereby attached as exhibits 11 and 12 respectively.
10. That both the Central Bank of Nigeria (Garnishee) and the Respondent severally appealed against the order absolute while the appeal of the Central Bank of Nigeria was upheld and the order absolute set aside on the 9th day of November, 2017 on the ground of want of jurisdiction and abuse of court process, that of the Respondent was dismissed on the 17th day of September, 2018 for want of diligent prosecution. The above referred judgment and ruling are hereby attached as exhibits 13 and 14 respectively.
11. That on the 2nd day of July, 2018 the appeal of the Respondent against the judgment of this Court delivered on the 21st day of May, 2015 was dismissed and the judgment affirmed consequent upon which we vide the letter dated the 4th day of July, 2018 wrote the Respondent demanding the payment of the judgment debt plus the accrued interest then in the total sum of N374,953,090.34,. The herein referred judgment and the letter of demand are hereby attached as exhibits 15 and 16 respectively.
12. That upon the receipt of the above referred letter, the judgment Debtor/Respondent only paid the sum of N78,091,037.00 on the 18th day of July 2018 leaving out the sum of N296,862,053.00 of the sum then due and demanded, on the ground that 50% post judgment interest was not part of the judgment of this court.
13. That I know as a fact that the Court of Appeal, before setting aside the order nisi and order absolute in her decision in exhibit 13, restated/held that “interest of 50% per annum was awarded as post judgment interest” in the judgment of this court.
14. That I know as a fact that the Court of Appeal before dismissing the appeal of the Judgment Debtor/Respondent against the decision of this Court in our favour in exhibit 15 herein again restated the fact that “This appeal was lodged against the judgment of the National Industrial Court sitting at Awka coram Waziri Abali J. in Suit No. NICN/MKD/02/2013 in which the claims of the respondents (Judgment Creditor/Applicants herein) were granted against the Appellant.” Our claims stated to have been granted against the Judgment Debtor included 50% post judgment interest.
15. That vide the letters dated the 7th day of September, 2018 and 18th day of September, 2018 we again demanded the immediate payment of the balance, so that the Respondent will not suffer further accrual of interest, which letters were not benefited with any positive response hence this application. The letters are hereby attached as exhibit 17 and 18.
16. That I know as a fact that the balance of the judgment debt plus the accrued interest now stands at N358,583,314.08.
17. That the Respondent as a Banking Institution, (in view of the balance remaining unpaid) do not (Sic) have sufficient movable property or such movable property that can be conveniently attached and sold to satisfy the balance of the judgment debt.
18. That the respondent is the owner and in occupation of the properties situated and lying at (1) Bashorun MKO Abiola House, Plot 786, 5th Street, Central Business District, Abuja (2) No 76 Iyorchia Ayu Road, Wurukum, Makurdi and (3) Jos Road, by Hospital Road, Lafia, Nasarawa State.
19. That I know as a fact that the Judgment Debtor’s movable properties that can be found at her immovable properties in 2 and 3 of paragraph 18 herein are a total of six (6) old vehicles and 15 computers, while the movable properties in 1 are seven (7) old vehicles and Ten Computers. All other movable properties at the premises are hired and or leased by the Judgment Debtor and or belongs to her staff.
20. That the total cost/value of all the movable properties as a result of their age and usage is not more than N30,000,000.00, very insufficient to settle the balance of the judgment debt and indeed the cost of attaching same shall be huge and cumbersome.
21. That except an order is granted attaching the above referred immovable properties of the Respondent; the Respondent shall not obey the judgment of this court affirmed by the Court of Appeal by paying the balance of the judgment debt.
22. That this court held that “…the Claimants have proved their case and are entitled to their claims; and I dare to so hold”, which claims include the 50% post judgment interest, the court inadvertently omitted to specifically pronounce on the interest claimed as it did the other claims neither did the Court specifically pronounce that we are not entitled to the post judgment interest.
23. That in the enforcement proceedings taken out on our behalf, this Court had granted orders taking into account the 50% post judgment interest claimed, which it held we have proved and entitled to.
24. That in appeals Nos. CA/MK/187/2017 and CA/MK/54/2015 the Court of Appeal held respectively, with respect to the judgment of this Court that “interest of 50% per annum was awarded as post judgment interest” and “…the claims of the respondents (Judgment Creditors/Applicants herein) were granted against the Appellant”.
A written address of Counsel was also filed in support of the application. Counsel adduced three (3) issues for the court's determination, to wit:
"1. Whether the Applicants, by the supporting affidavit, and the exhibits attached thereto have made out a case to be entitled to the grant of the order to attach the immovable properties of the Respondent for the satisfaction of the balance of the judgment debt as per the judgments of the court of appeal which restated and/or affirmed the reliefs granted the Judgment Creditors, especially the 50% post judgment interest.
2. Whether pursuant to the provisions of section 287(2) of the 1999 Constitution (as amended) and Section 7(2) of the Court of Appeal Act this Court is bound to enforce the judgments of the Court of Appeal restating and/or affirming the reliefs granted the Judgment Creditors/Applicants, especially the 50% post judgment interest.
3. Whether in view of the Honourable Court holding that “…the claimants have proved their case and are entitled to their claims; and… dare to so hold”; but inadvertently omitted to specifically pronounce on the 50% post judgment claimed and/or specifically denying entitlement to same, the non pronouncement amounts to an accidental omission, liable to be corrected by pronouncing the 50% post judgment interest, guided by the orders of the Court subsequent to the judgment and the specific pronouncements of the Court of Appeal with respect to the judgment as regards the 50% post judgment interest.”
Extensive arguments were fielded by the Counsel for the applicants on the issue so formulated. Counsel urged the Court to grant the application in the interest of justice.
Arguing issues 1 and 2 together, applicants' counsel relied on the case of COCACOLA NIGERIA LTD V. AKINSANYA (2018) ALL FWLR (931) 614 to stress the point that decisions of the Court of Appeal on appeals emanating from decisions of the National Industrial Court of Nigeria hint of finality of the decision. Relatively, Counsel therefore submitted in line with the reasoning in the cited case of COCACOLA NIG. LTD V. AKINSANYA (SUPRA) that whatsoever the Court of Appeal has said with regards to the reliefs granted the Judgment Creditors/Applicants is mandatory on this court.
Counsel further contended that owing to the fact that the Judgment Creditors/Applicants had specifically prayed for 50% post judgment interest “from the date of judgment until same is finally liquidated” from the Court as reflected in Exhibit 1a, and having regards to the fact that while resolving the suit in favour of Judgment Creditors/Applicants, the court had empathically pronounced that “having resolved the proceeding (sic) issues in favour of the claimants (Judgment Creditors/Applicants herein), it follows that the claimants have proved their case and are entitled to their claims; and I dare to so hold,” that all the claims of the Judgment Creditors /Applicants had been awarded as prayed. To further buttress the point, Counsel cited and relied on the cases of: EKITI LOCAL GOVERNMENT AREA V. AJE PRINTING (NIG) LTD (2009) 4 NWLR (PT 229) 304 @ 339 PARA A-B; AMORI V. IYANDA (2008) ALL FWLR (PT 416) 1864 @ ‪1891-1892 PARA F –A; OWNERS OF M/V GONGOLA HOPE V. SMURFIT CASE NIGERIA LTD (2007) ALL FWLR (PT 388) 1005 @1020 PARA D – E; NIGERIA GENERAL SUPERINTENDENCE CO. LTD V. THE NIGERIA PORTS AUTHORITY (1990) 1 NWLR (PT. 129) 741 @ 148 PARA A-G.
Furthermore, relying on the case of BERLIET V. KACHALLA (1995)12 SCNJ 147 counsel maintained that even though the court did not specifically refer to the 50% post judgment interest claimed after setting out the monetary claims, that does not detract from the fact that the 50% post judgment interest had been awarded as part of the judgment. Counsel submitted that the court did not and had no need of pronouncing on the 50% post judgment interest specifically. Citing and relying on the cases of STABILINI VISINONI V. METALUM LTD (2008) ALL FWLR (PT 409) 503 @ 519; OWNERS OF M/V GONGOLA HOPE & ANOR V. SMURFIT CASES NIGERIA LTD ANOR (SUPRA) counsel argued that whilst the rate of interest to be awarded is within the discretion of court, it is expected that where the court refuses to award interest, the court should advance reasons for such refusal particularly where the interest has been sought by a party. It is the reasoning of counsel for the applicants that the failure of the court to specifically deny the 50% percent interest is sustaining of the fact that the 50% percent interest was awarded.
Furthermore, applicants' counsel has urged the court to be persuaded by the decisions of the Court of appeal, supplied as Exhibits 13 and 15 wherein it was stated that “interest of 50% per annum was awarded as post judgment interest” and that “…the claims of the respondents (including the 50% post judgment interest) were granted against the Appellant”
To cap it all, counsel submitted that where post judgment interest is claimed, same being within the Rules and the court does not give reason(s) why same should not accrue on the judgment; same shall automatically accrue upon the failure, neglect and/or refusal of the Judgment Debtor to pay the Judgment debt promptly. Counsel directed the attention of the court to the case of BERLIET V. KACHALLA (SUPRA) in support of this point.
On issue three, counsel indicated that it was being argued in the alternative. Supposing that in the unlikely event that the court overlooks the two subsisting judgments of the Court of Appeal with respect to the judgment sought to be enforced then this issue should suffice. Arguing this issue, counsel hoped to sway the mind of the court with these two points: the first being that the Rules of Court, per Order 21 Rule 4 of the 2007 Rules and Order 49 Rule 7 of the 2017 Civil Procedure Rules of this Court allow for the award of post judgment interest of not less than 10%. This being the benchmark for the award of post judgment interest by the court, the limit is left at the discretion of court. The second point being the fact that the 50% post judgment interest is incidental and/or ancillary to the judgment entered in favour of the applicants, a statutory entitlement of a monetary Judgment Creditor that need not be specifically pleaded nor supported by evidence.
Finally, applicants counsel urged the court to grant the order for the attachment of immovable properties of the Judgment Debtor for the satisfaction of the Judgment debt as sought.
Opposing the application, the Respondent filed an 8 – Paragraph Counter Affidavit on 21/01/2019. It is deposed to by D. M. Tsevende Esq. Paragraphs 3, 4, 5 thereof are the most relevant wherein, the deponent averred thus:
“3(a) That Paragraphs 6, 7, 9, 11, 12, 13, 14, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 of the affidavit in support of the motion is completely false and concocted lies while paragraph 12 thereof is true only to the extent that the respondent paid the applicants the sum of N78,091,037.00 only as ordered by this Hon. Court.
b. That despite the fact that the judgment of this Hon. Court was clear in the orders it made, the applicants counsel in breach of the duty he owes the respondent and the legal profession, allowed himself to be used and he wrote a demand letter dated 4th day of July 2018 to the respondent demanding for the payment of the sum of N374,953,090.34 (Three Hundred and Seventy Four Million, Ninety Hundred and Fifty Three Thousand, Ninety Naira Thirty Four-kobo)only, being the alleged judgment debt in Suit no. NICN/MKD/02/2013 – Mr. Philip Shagba and 1Or V. Keystone Bank Limited, despite the fact that the applicants counsel knew or had reason to know that the sum demanded was never awarded in the judgment of the National Industrial Court. The letter of the 1st Defendant is annexed as Exhibit JS01.
c. That in response to the letter of the Applicant’s Counsel aforesaid which he wrote as a solicitor, learned senior counsel to the respondent replied vide a letter of 5th day of July 2018 that the amount he was demanding for as the judgment sum was outrageous and fictitious and in the said letter highlighted the order of the court as captured hereunder:
On the whole, I find and hold that the plaintiffs are entitled to judgments and I consequently enter judgment for the plaintiffs as follows:
1. An order directing the defendants to pay the 1st Respondent the sum of N33,362,014.10 as claimed in paragraph 13 of the Plaintiff’s statement of claim.
2. An order directing the Defendant to pay to the 2nd Respondent the sum of N42,729,022.90 as claimed in paragraph 14 of the Plaintiffs’ statement of claim.
3. An order directing the Defendant to pay each of the plaintiffs the sum of N1,000,000 as general damages for breach of contract and financial pain and loss suffer as a result.
Judgment is entered accordingly.
The letter is annexed as Exhibit JSO 2.
d. That in the said letter referred to in the preceding paragraph, respondent’s counsel demanded that the APPLICANTS should provide respondent with an account and means of payment of the judgment sum of N78,091,037.00 (Seventy Eight Million, Ninety One Thousand and Thirty Seven Naira) only which APPLICANTS provided vide their solicitor’s letter of 9/7/2018 acceding to the position of the respondent as directed in the judgment and on the 19/07/2018 respondent paid the judgment sum of N78,091,037.00 (Seventy Eighty Million, Ninety One Thousand, Thirty Seven Naira) Only as full and final payment of the amount awarded by the National Industrial court to the 1st defendant’s Account with the following particulars OKPALE S. O. OJIKPA AND ASSOCIATES (Clients account) No ‪7809103700. Fidelity Bank Plc. Copy of the letter is annexed as Exhibit JSO3.
e. That after the respondent paid the full judgment sum and in a sudden twist counsel to the applicants wrote the respondent’s counsel vide a letter dated 7/09/2018 demanding that the respondent's solicitors should advice the respondent to pay additional N296,862,053.34 (Two Hundred and Ninety Six Million, Eight Hundred and Sixty Two Thousand, Fifty Three Naira Thirty Four kobo)only, as the unpaid balance and interest on the judgment sum.
The said letter received by the learned senior counsel to the respondent is attached as Exhibit JSO4.
f. That when the applicants did not receive any response from the respondent’s solicitors, applicants' counsel wrote another letter to the respondent demanding for the payment of the alleged balance on the judgment sum threatening to embarrass the respondent if the said amount is not paid within 5 days from the date of receipt of the said letter. Copy of the letter is attached as Exhibit JSO5.
g. That there is no longer any judgment in existence to be enforced by the applicants however the antecedent of their counsel shows that he will do anything including attaching respondent’s funds with Central Bank of Nigeria to arm twist the respondent to pay the fictitious sum of N296,862,053.32 (Two Hundred and Ninety Six Million, Eight Hundred and Sixty Two Thousand, Fifty Three Naira. Thirty Two kobo) only, alleged to be the balance of the Judgment sum.
h. That prior to the incessant letters of demand and threats from the APPLICANTS to the respondent pay to the APPLICANTS’ amount of monies over and above the judgment sum in Suit No. NICN/MKD/02/2013, the applicants counsel has always allowed himself to be used to harass, embarrass and threaten the respondent with letters of demands to pay what was never decreed in the judgment of court and these letters are vexatious, frivolous and are a source of embarrassment and nuisance to the respondent and her business operations.
i. That the applicants' counsel know or ought to know that the judgment of the National Industrial Court which the respondent has obeyed and paid the sums as decreed did not decree interest to be paid on the said judgment sum, yet he in breach of the duty he owes the respondent and as a member of the legal profession, decided in breach of the duty of care he owes the respondent and in concert with the APPLICANTS decided to make bogus , unwarranted and most unreasonable demands for payment of N296, 862, 053.34 (Two Hundred and Ninety Six Million, Eight Hundred and Sixty Two Thousand, Fifty Three Naira. Thirty Four kobo) only, alleged to be the balance of the judgment sum.
j. That the applicants counsel who initiated this process is allowing himself to be used to harass, embarrass and threaten the respondent as deposed hereinbefore was in breach of the duty he owes the respondent to ensure that in acting for the APPLICANTS as their solicitor that he as lawyer:
a. Shall keep strictly within the law notwithstanding any contrary instruction by the APPLICANTS and if the APPLICANTS insist on a breach of the law he shall withdraw his services.
b. Shall not give advice to the APPLICANTS which he knows or ought to reasonably know is capable of causing breach of the law.
c. Should not assert a position on behalf of the APPLICANTS when he knows or ought to reasonably know that such action would serve to merely harass or maliciously injure the respondent.
d. Should not knowingly advance a claim that is unwarranted under the judgment of the National Industrial Court of Nigeria.
k. That upon seeing the certificate of judgment allegedly issued to the applicants which is the premises upon which they claim that the respondent is owing them interest on the judgment sum, our M. O. Ozueh Esq. called Mr. Peter Omene the Registrar of the National Industrial Court who issued the certificate and drew his attention to the anomaly on the certificate vide phone call in our office on the 19/11/2018 at about 12:30PM or thereabout.
i. That Mr. Peter Omene in response to the anomaly that was brought informed Mr. Ozueh Esq. and I verily believe him to be true that the certificate of registration was issued by him in error as the 50% interest reflected therein was not ordered by the court nor contained in the Judgment of the court.
m. That Mr. Peter Omene has since written all the APPLICANTS through their counsel notifying them of the withdrawal of the said Certificate and he has also deposed to an affidavit to that effect stating the circumstances under which the defective certificate was issued. Copy of the letter by Mr. Peter Omene Registrar of the National Industrial Court and Affidavit sworn by him are hereby attached as Exhibits JS06 and JS07 respectively.
4. That the respondent has filed an action against the applicants and their counsel before the Benue State High Court Makurdi Suit No MHC/339/2018 between Keystone Bank Ltd V. S. O. Okpale and 2 Ors seeking to refrain the APPLICANTS from harassing the respondent on account of a non-existent debt hinged on the tortuous advice and professional misconduct of their counsel and restraining them from further threatening and harassing respondent to pay a fictitious and non-existent judgment sum which suit was filed and served on Mr S.O. Okpale and the applicants and the ruling for the notice of preliminary objection filed by the Counsel for the applicant was dismissed on 18/1/2019 as the court ruled that it has jurisdiction to hear the suit against the applicants and their counsel. Copy of the originating process in the suit is hereby annexed as Exhibit JS08.
5. That this application amounts to an abuse of court process and this Honourable Court lacks the jurisdiction to determine this application in view of the pendency of Suit No: MHC/339/2018/ between KEYSTONE BANK LTD V. S. O. OKPALE & 2 ORS.
Respondent Counsel supported the Counter Affidavit with a written address wherein, a single issue was formulated and submitted for determination by the court. The issue is as follows:
"Whether this Hon. Court can grant leave to the applicants to enforce the Judgment in Suit No NICN/MK/02/2013 in view of the fact that the Respondent has paid the applicants the judgment sum as ordered by this Hon. Court in its Judgment and indeed whether there is a Judgment existing to be enforced by the applicants in suit no. NICN/MK/02/2013."
The Respondent submitted that the issue is to be answered in the negative.
Reacting, the Judgment Creditors/Applicants caused a reply to the Judgment debtor/respondent’s written address to be filed on 12/02/2019. It challenges the competence of the Counter Affidavit filed by the Respondent. The Applicants counsel posed the question:
“Whether the Counter Affidavit filed by the Judgment Debtor/Respondent is incompetent/defective and therefore liable to be struck out and/or discountenanced by the Honourable Court in the determination of the application.”
Counsel put forward elaborate submissions to support the argument that the said Counter Affidavit of the Respondents did not accord with the relevant provisions in Section 115 of the Evidence Act.
Counsel to the Judgment Creditors also filed a 7 paragraph further affidavit on the 2/4/2019 and attached Exhibit 22. Two lists of additional authorities were also filed.
OPINION OF THE COURT
I have carefully gone through the processes filed by the parties and their respective arguments and I think the issue of whether the Applicants are entitled to the reliefs sought is apt and can conveniently resolve the issues raised by the parties.
I should quickly point out that the instant application stems from the judgment of his lordship, Honourable Justice Waziri Abali (of blessed memory) in Suit No. NICN/MKD/02/2013, delivered on the 21st May 2015. It is attached to the application under consideration as Exhibit 1a.
The portion of the judgment in contention states as follows ;
"Having resolved the proceeding(sic) issue in favour of the claimants, it follows that the Claimants have proved their case and are entitled to their claims; and I dare so hold.
On the whole, I find and hold that the Claimants are entitled to Judgment and I consequently enter judgment for the claimants as follows:
1. An order directing the defendant to pay the 1st Claimant the sum of N33,362,014.10 as claimed in paragraph 13 of claimant’s statement of claim.
2. An order directing the defendant to pay to the 2nd claimant the sum of N42,729,022.90 as claimed in paragraph 14 of claimants’ statement of claim.
3. An order directing the defendant to pay each of the claimants the sum of N1,000,000 as general damages for breach of contract and financial pain and loss suffered as a result.”
It is the submission of the learned Counsel for the applicants that the holding of his lordship that "It follows that the Claimants have proved their case and are entitled to their claims; and I dare so hold." is tied to and undoubtedly according to counsel made reference to the reliefs of the applicants as contained on the face of the complaint. In essence, the 50% interest according to counsel is included.
Let me also quickly reproduce the said reliefs as reflected on the face of the complaint :-
“The claimants' claim severally from the defendant for;
1. The 1st Claimant the total sum of N33, 362,014.10 as per paragraph 13 hereof plus interest theron at the rate of 50% from the date of the judgment until same is finally liquidated.
2. The 2nd claimant the total sum of N42, 739,022.90 as per paragraph 14 hereof plus interest thereon at the rate of 50% from the date of judgement until same is liquidated.
3. The plaintiffs each claims the sum of N10, 000.00 as general damages for breach of contract and financial pains and lost, that is the total of N20, 000,000.00
4. The claimants claims such other consequential and or equitable relief as the court may deem fit to make in the circumstance of this case. "
Just out of curiosity, I have looked at the paragraphs 13 and 14 of the statement of claim which was filed together with the complaint on 07/01/2013, Exhibit 1, as alluded to in relief 1. The paragraph 13 thereof reads thus:
“13. The 1st claimant avers that at the time of his resignation he was owed the total sum of N33,362,014.10 (Thirty Three Million, Three Hundred and Sixty Two Thousand, Fourteen Naira, Ten Kobo) by the defendant broken down as follows:
i. The unpaid initial agreed salary/allowance from May, 2007 to December, 2007 a period of 8 (eight) months, been (Sic) N613,500.00x8=N4,908,000.00.
ii. The balance of the unpaid reviewed salaries/allowance from January, 2008 to May, 2009 a period of 17 (Seventeen) months that is N864,789.95X17 =N14,701,429.10
iii. The unpaid salaries/allowances of the 1st claimant during the period of suspension from June, 2009 to February, 2010 that is a period of 9 (Nine) months been(sic) N916,839.00X9=N8,251,551.00.
iv. The terminal benefit/ex-gratia payments been(sic) six months salaries/allowances that is N916,839.00X5=N5,501,034.00. "
Apparently, there is no mention of 50% interest there. In like manner, there is no mention of 50% interest in paragraph 14 thereof which is alluded to in relief 2 either.
Looking at the reliefs sought and the orders granted, there appears to be a disparity. While in the applicants' reliefs there is a claim for 50% interest and N10, 000,000,00 general damages to each of the claimants but his lordship was silent on the issue of interest and granted N1, 000,000,00 each to the claimants as general damages instead of the N10, 000,000,00 claimed.
It is the law that the above orders, being part of the judgment of this court is conclusive proof against the parties in this case and the orders remain valid and effective unless they are set aside by an appeal court or the court itself if it found that it acted without jurisdiction. See Witt & Bush Ltd V Dale power systems Plc(2007)LPELR - 3499(SC).
I should say straight away that parties and the court are bound by the judgment of the court including the award therein. SEE ALHAJI ISIYAKU YAKUBU ENTERPRISES LTD & ANOR.V.MR. S. B. OMOBOLAJE & ORS (2006) 1 SCNJ 86.
This Court cannot vary or rescind its order unless it was erroneously or mistakenly granted. See Alpha prop Int. Ltd V NDIC(2006) NWLR (Pt. 962) 624 and order 47 Rule 22 of the Rules of this court 2017.
It was held in Ukelere V FBN Plc(2011) LPELR - 3869(CA) that an order of court is one which directs a party to a case to do something in relation to the case. See also Bello V Fayose(1999) NWLR (Pt. 627) 510.
Section 318(1) of the 1999 constitution as amended defines a 'decision' to mean in relation to a court as any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation.
The word determination was held in the case of Duke V Ephraim & Anor(2009) LPELR - 8064 to mean bringing or coming to an end, or the mental action to a decision, or resolving a question.
In Bamaiyi V AGF (2001) LPELR 730(SC), a decision was held to be a determination of a judicial or quasi judicial nature. A judgment, decree, or order pronounced by a court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it. The term is broad enough to cover both final judgments and interlocutory orders. A decision is therefore a pronouncement made by a court which stands as its final verdict to a question brought before it for determination.
Likewise, judgment is defined as the court's final determination of the rights and obligations of the parties in a case. It includes an equitable decree and any order from which an appeal lies. In legal parlance, it refers to a final finding, statement or ruling based on a considered weighing of evidence. Judgment is also defined in law to include the determination by a court of competent jurisdiction on matters submitted to it or the act of determining, as in court of law, what is comfortable to law and justice. Also, the determination, decision or sentence of a court or a judge deliver judgment. See Saleh V Donald(2012) LPELR 9299-(CA)
It is trite that where language used is clear and unambiguous, the words must be given their simple, natural, ordinary and actual grammatical meaning. Nothing is more unfortunate than a disturbance of the Plain language of a document by attempting to bring equivalent terms. See NNPC V Aminu(2013) LPELR (CA). See also Nigeria Army V Aminu Kano.
Applicants argued that by this application, and by section 287(2) of the 1999 as amended and section 7(2) of the court of appeal Act, this Court is only urged to enforce the judgment of the court of appeal which affirmed the decision of Hon. Justice Waziri Abali after the Respondent filed an appeal and lost. However, I must say that throughout the decision of the court of appeal ie Exhibit 15 there is no specific pronouncement of the court of appeal affirming the award of 50% interest. The Court only said that the appeal is without merit and the judgment of this court is affirmed.
It is the law that an order for the enforcement of a valid judgment of a court of law must address exactly what the judgment being enforced decided. The exact terms of the judgment cannot be varied and must be enforced in exactly the same tenor as was determined. See Igbomoyi V Lawal(2013) LPELR - 22006(CA). See also Alpha prop; Int. Ltd. V NDIC(supra).
In brief, it is understood that the judgment in this case was obtained sometime in 2015. Thereafter, within a space of about two or three months thereabout, Counsel on behalf of the Judgment Creditors applied for and secured a garnishee order nisi which was subsequently struck out and secured another order Nisi on the 13/12/2016 and made absolute on the 23/5/2017. That Garnishee order absolute was then subject of appeal, ultimately leading to it being overturned. What is interesting to note however, and I believe the applicants' counsel would want very much this court to take cognizance of is the judgment sum contained in the garnishee proceedings plus the interest claimed. However, since, the 1st order Nisi made on the 15/7/2015 was struck out and the order absolute made on the 23/12/2017 was upturned, then Iam not inclined towards taking cognisance of them to imply that they formed part of or supplement the judgment of this Court delivered on the 21/5/2015. I think both the order Nisi and the order absolute have no legal consequence. It is as if they never existed. The orders bind no one and are incapable of giving rise to any right or obligation under any circumstances. See Macfoy V UAC(1961)3 ALL ER at page 1172, Akpene V Barclays Bank Of Nig. Ltd. (1977) LPELR - 386(SC), Igwe V INEC (2012) LPELR - 9834(CA).
Originally, the judgment of this court put the judgment sum at N78 million. Interestingly, it would seem that the Judgment creditors subjected that sum to unilateral increment in the mistaken belief that the judgment debt had begun accruing interest just immediately after. Hence, Exhibits 6 and 7 which are the motion exparte and the order nisi which the applicants have pleaded before me are reflecting N83,974,623.50.
I find this instant application to be a figment of the imagination of the applicants. It leaves much to be desired.
The application is greatly concerning in the sense that whether by omission or commission, it draws from a wrong premise; that the judgment of Abali J, entitles the Judgment creditors/Applicants to an interest to the tune of 50% of the judgment sum.
Though I am mindful of the reasoning explored by the applicants' counsel that based on plethora of case law to which he directed the attention of court and the rules of court, interest ought to accrue automatically, even though there is no express mention of same in the judgment of court. I consider that argument to be hypothetical and academic. I shall therefore not indulge it for much longer for the simple reason being that by the canons of interpretation, the law is well settled and abundantly clear that the express mention of specific things in a any enactment or document means the express exclusion of things not so mentioned. See Adekoye V NSPMC Ltd. (2009) NWLR (Pt. 1134) 322 SC. That maxim has been so beautifully captured in latin as “expressio unius est exclusio alterius.”
The court, (per coram, Abali J.) was fairly straight-forward as to what reliefs were awarded the applicants, and which reliefs were by implication excluded. I do not suppose that I should dwell too much on that. A judgment remains binding until it is set aside by a competent court. To hold otherwise is to clothe a party against whom a judgment has been obtained with the discretion to decide in his wisdom that the judgment is invalid and not binding on him. This is an invitation to anarchy. SEE ROSSEK V. AFRICAN CONTINENTAL BANK (1993) 10 SCNJ 39 – 40.
Much as I have looked and evaluated all the processes filed before me by both parties, it is apparent that the judgment of Abali J. captured above did not by the wildest stretch of imagination contemplate the award of post judgment interest. If anything, it would seem that the court had deliberately re-rendered the reliefs it granted so as not to be mistaken to have granted the entirety of the prayers sought, which included post judgment interest of 50%.
From the totality of the averred deposition by the judgment creditors/applicants in support of the application, I find the affidavit to be largely at odds with the judgment of the court, as the Judgment sum was clearly stated not to include 50% interest and if his lordship Abali J. had intended the 50% interest to be part of his orders, he would have expressly stated so as he did in his order of general damages.
See paragraph 22 of the applicants' affidavit in support of their application where it was averred thus:
"..... 22. That this court held that “…the Claimants have proved their case and are entitled to their claims; and I dare to so hold”, which claims include the 50% post judgment interest, the court inadvertently omitted to specifically pronounce on the interest claimed as it did the other claims neither did the Court specifically pronounce that we are not entitled to the post judgment interest."
Going by the above, Iam therefore not minded and inclined to ascribe any weight to the deposition in support of the application, the reality on ground is that even the applicants conceded much that the 50% interest was not specifically pronounced. But instead of the applicants to appeal the judgment of the court delivered on 21/5/2015, they now try to cleverly urge the court to review that judgment which has already determined the rights and obligations of the parties. This Court is functus officio.
Nevertheless, there is a presumption of regularity inuring in favour of the judgment of court.
Having exhaustively considered the background for the instant application and adjudged its predisposition to misdirection, I have no difficulty in coming to the conclusion that it runs amok of the judgment of court and the law.
It stands to be reasoned that after judgment was delivered in NICN/MKD/02/2013 on 21st May 2015, learned senior counsel for the applicants caused the claim for the 50% interest which was hitherto excluded and/or refused by court to be resuscitated.
With all that I have highlighted, I consider the applicants' motion to be ungrantable.
The application dated 31/12/2018 and filed on 07/01/2019 lacks merit and it is accordingly dismissed.
Ruling is entered accordingly. I make no order as to cost.
HON. JUSTICE S.H. DANJIDDA
(PRESIDING JUDGE).
