IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE MAKURDI JUDICIAL DIVISION

HOLDEN AT MAKURDI

BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA.

 

DATE: 22ND DAY OF  NOVEMBER, 2019                    SUIT NO. NICN/MKD/26M/2019

 

BETWEEN:

 

1.    ALEXANDER CHOKO        

2.    CELESTINE SHIAONDO

3.    SIMON UKUMA

4.    MICHAEL IGYUCHE                       

5.    DAVID AGBAKWA

6.    WILLIAM ANLYEMEN                  JUDGMENT CREDITORS/RESPONDENTS

7.    EMMANUEL DUGERI

8.    SLYVESTER UME

9.    SLYVESTER GOGO

10.ALPHONSUS ADOKA

11. LEONARD ENGER

12.   JEROME EDOH

 

AND

 

1.    BENUE STATE LOCAL GOVT.

PENSIONS BOARD, MAKURDI.

2.    ATTORNEY- GENERAL

& COMMISSIONER                                       JUDGMENT DEBTORS/APPLICANTS

OF JUSTICE, BENUE STATE.                          

3.    THE GOVERNOR OF BENUE STATE

4.    THE GOVERNMENT OF BENUE STATE

 

REPRESENTATION:

V.T. Amale holding the brief of J.A. Ahungwa for Judgment Creditors/Respondents.

P.M. Ukande (DDPP) holding the brief of J. I. Wombo (CLO) Benue State Min. Of Justice for the Judgment Debtors/Applicants.

RULING

This is an application for payment of judgment sum by Installments dated and filed on the27thof September 2019 by the judgment debtors/Applicants. The application which is predicated on Order 49 Rule 13 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017 and the inherent powers of the Honourable Court seeks the following reliefs;

 

“1.     An order of this Honourable Court allowing the Defendants/Applicants to pay the Claimants the judgment sum in instalments.

2.    An order of this Honourable Court granting the Defendants/Applicants leave to make to each Claimant/Respondent a down payment of N300,000.00 (Three Hundred Thousand Naira) to each Claimant at the first instance and subsequently make a payment of N100,000.00 (One Hundred Thousand Naira) only monthly to each Claimant until the whole judgment sum is fully paid.

3.    AND FOR SUCH FURTHER ORDER(S) as the Honourable Court may deem fit to make in the circumstances of this case."

 

A ten paragraph affidavit deposed to by one Josephine Atoakaa was filed in support of the application and a written address was also caused to be filed to accompany the application thereof.

 

In opposing the application, the Judgment creditors/Respondents filed a twenty paragraph counter affidavit on 31st October 2019 deposed to by Moses Abuku, a Litigation Secretary in the law firm of John Igbabon & Associates and a written address was also filed to accompany the application.

The application was heard on 31st October 2019 and counsel to both parties were heard adopting their respective written addresses as their submissions for and against the application.

                              

It was averred on behalf of the applicants that the Claimants commenced a suit against the Judgment debtors claiming the sum of N87, 331,731.30. That this Court gave judgment on the 17/5/2019 directing the judgment debtors to pay the sums claimed. It is the averred statement of the applicants that they are not in a position to pay the judgment sum wholly at the moment as a result of economic fortunes of the state as well as the lean financial status of the Defendants. That the 1st judgment debtor attached Exhibit MOJ 1 to show that it has requested for funds from the 3rd judgement debtor to settle Court cases. It was further averred that the applicants would make a down payment of N300, 000.00 to each of the claimants in the first instance and subsequently pay to each of the claimants the sum of N100, 000.00 monthly until the whole judgment sum is fully liquidated.

 

Counsel to the Judgment Debtors/Applicants in his written address raised one issue for determination to wit; "Whether the Applicants have made out a case for the court to exercise its discretion in their favour".

 

Counsel contends that by their affidavits before the court a meritorious case has been established for the court to exercise its discretion in their favour.

Counsel submits that the Judgment Debtors/Applicants have disclosed enough full and frank financial position, obligation and liabilities in the affidavit evidence to deserve the grant of this application. Also that the applicants have shown adequate commitment in their willingness to pay the judgment sum of N87,331,731.30 (Eighty- Seven Million, Three Hundred & thirty- One Thousand Seven Hundred & Thirty One Naira Thirty kobo) only due to the Judgment Creditors/Respondents in monthly instalments.

 

Counsel urged the court to hold that the Judgment Debtors/Applicants have made out a good case and urged the court as well to grant the application in the interest of justice.

 

In opposing the application, the judgment Creditors averred in their counter affidavit that the judgment sum was N87, 142,730.97 instead of N87, 331,731.30 as contended by the judgment debtors. That since the time when judgment was delivered, the applicants did not make any effort to pay the judgment sum and that the failure of the applicants to pay was as result of insensitivity and oppression. Judgment Creditors also stated that the Federal Government earlier released series of bail out funds and Paris club refund to the 4th applicant to offset the backlog of salaries, gratuities and pension arrears in the state, but the money has not been applied for its singular purpose and the money is still being held by the 4th applicant as against the directive of the Federal Government.It was averred by the judgment Creditors that the proposal made by the applicants is unreasonable, insensitive and annoying as it would take more than 5 years for the judgment sum to be fully liquidated. That all the judgment Creditors have many dependents, aged parents and other needs of health care, food and general maintenance and they do not concede to any payment by installments.

                                     

In their written address, the Judgement Creditors/Respondents’ Counsel raised a single issue in their written address thus; “whether this application has merit and deserves to be granted.”

                       

Counsel to the Judgment Creditors/Respondents submits that the above issue be answered in the negative. Counsel contends that the judgment debt which the Judgement Debtors/Applicants are seeking to satisfy on a monthly basis for over a period of five years was to be paid within 30 days which should have been on 16th June 2019.

 

Counsel argues that from 16th June 2019, the Judgment Debtors/Applicants became in contempt of the court by failure to satisfy the judgment sum within 30 days as ordered by the court.

Counsel submits that the instant application filed by the Judgment Debtors/Applicants who are already in contempt of the court is merely an equitable relief and the law is that he who comes to equity must come with clean hands. Counsel cited the case of Alamieyesigha V. FRN (2006) 16 NWLR (pt. 1004) 1.

 

Counsel submits that the application by the judgment Creditors/Respondents to enforce the said judgment is a legal right and where there is a conflict between an equitable right and a legal right, the legal right prevails, thus the application of the Judgment Creditors/Respondents to enforce the judgment delivered on 17th May 2019 prevails over that of the Judgment Debtors/Applicants for payment of the judgment sum by instalments.

 

Counsel submits that the court should discountenance the reason stated by the Judgment Debtors/Applicants that they could not satisfy the judgment sum because of the dwindling economic fortunes and lean financial status. That the Federal Government has in recent years released series of bailout funds to the states including Benue state for the purpose of clearing backlog of salaries, pensions and gratuities even before the arrival of the Paris club refund.

Counsel urged the court to hold that the Judgment Debtors/Applicants are buoyant to pay the judgment debt and clear all outstanding backlogs and dismiss the application with cost.

 

 

COURT`S OPINION

I have carefully gone through the processes filed by the learned counsel for the parties and also considered their submissions, the issue that calls for determination is; whether the Judgment debtors/Applicants have disclosed sufficient facts in their affidavit to warrant granting their application to pay the judgment sum by installments.

 

It is settled law that once a court delivers judgment in a matter, it becomes functus officio in respect of the matter. This is premised on the fact that a judgment creditor is entitled to reap the fruits of his judgment. It is therefore the duty of the court to ensure that a successful party enjoys the success of his litigation and also ensure that the party seeking to deprive the successful party the fruits of his labour shows substantial reason why the court must grant his application of this nature. See the case of University of Ilorin V. Adesina (2008) All FWLR (pt. 400) 709 and also Martins V. Niccanar Foods & Co. Ltd (1998) 2 NWLR (pt.74) 75, Ajomale V. Yaduat (1991) 5 NWLR (pt.191) 266 and Heritage Banking Co. Ltd. V. National Universities Commission (2014) 15 NWLR (pt.1429) 76 at 81.

 

The application before the court seeks the discretion of the court to allow the judgment debtors/Applicants to pay the judgment sum in instalments until it is fully liquidated. Oder 49 Rule 13 of the National Industrial Court (Civil Procedure) Rules 2017 gives an opportunity to the judgment debtor by application to request for payment of the judgment debt by instalments. However this is subject to the conditions as stated in Order 49 Rules 14 and 16. Order 49 Rule 16 provides thus, “The court on hearing the parties may grant the application, if the judgment debtor satisfies the court by exhibiting such willingness and readiness by the payment of the first instalment at the hearing of the application”.

 

The provisions of Order 49 Rules 13, 14 and 16 of the rules of this court call for the exercise of the discretion of this court. A discretion of the court is said to have been exercised well judicially and judiciously where it is based only on materials placed before the court and not on extraneous or whimsical considerations. The hallmark of this discretion by the court is to do substantial justice between the parties. See the case of Abayomi V. Attorney- General, Ondo State (2007) All FWLR (pt. 391) 1683.

 

The Judgment Debtors/Applicants have in their affidavit in support of their application stated in paragraph 6 that “the inability of the Defendants to wholly pay the judgment sum is as a result of dwindling economic fortunes of the state as well as well as the lean financial status of the Defendants”.

 

In opposing this paragraph, the Judgment Creditors/Respondents in paragraph IV, of their counter affidavit state that “that since the judgment of this Hon. Court on 17/5/2019, the Applicants have not made any efforts to pay the judgment sum”, and in paragraph V, it was stated thus “that the failure of the Applicants to pay the judgment sum is not in any way as a result of their dwindling economic fortunes and lean financial status. It is purely out of insensitivity of Government and oppression”.

 

Paragraph vi of the counter affidavit also states, “that it is public fact that the Federal Government of Nigeria earlier released series of bailout funds and Paris club refund to the 4th Judgment Debtor/Applicant (the Government of Benue State) to offset the backlog of salary, gratuity and pension arrears in the state but the money has not been applied for its singular purpose”.

I consider it curious to state that, there is no further affidavit or reply on points of law from the Judgment Debtors/Applicants to challenge the assertions made by the Judgment Creditors/Respondents in their counter- affidavit.

These facts deposed to by the Judgment Creditors/Respondents in challenging a grant of the application for payment by instalments have not be objected to by the Judgment Debtors/Applicants by way of further affidavit to show actually the financial strain to pay the judgment debt in lump sum. The position of the law is that where there is no reply to a counter affidavit, the facts therein are deemed admitted. See the cases of Jumbo Unanganga V. M.G. Imo State (1987)3 NWLR (pt. 59)193 and Zenith Bank Plc V. Chief Godwin Omenaka& Anor (2016) LPELR-40327 at p.31.

 

I must observe that one of the doctrines of equity is that he who comes to equity must come with clean hands. That is to say that a person who seeks an equitable relief must hide no facts or misrepresent any and must show that he has done nothing by commission or omission to deny him the relief sought. The Judgment Debtors/Applicants before me have not come with clean hands to seek an equitable remedy as they have not made any effort to settle the judgment debt or pay some reasonable sum to the Judgment Creditors. In other words, the Judgment Debtors/Applicants have failed to exhibit their income, assets, expenditures and liabilities.There is nothing to even show compliance with Order 49 Rule 16 by making any payment since the delivery of this judgment on 17th May 2019. See the case of African Continental Bank Ltd. V. Dominico Builders Company Ltd. (1992) 2 NWLR (pt.223) 296 at 297- 298 and 302-303, and also Alalade V. National Bank of Nig. Ltd (1997) LPELR- 5540 (CA).

 

An equitable relief requires disclosure of sufficient facts to enable the court exercise equitable jurisdiction. In the case of Okafor V. Nnaife (1987) 4 NWLR (pt.64)129 at 138, the Supreme held that;

 

“A court cannot do equity in the right manner unless

there are sufficient facts disclosed in support of the exercise

of that sort of relief which is an appeal to the conscience

of the court. Every court called upon to exercise its discretion

to order instalmental payment of a judgment debt must

therefore take it that it is a judicial function that needs a careful

analysis of the facts. It is certainly not an order to be made as a

matter of course. Any relief not granted as a matter of course

must necessarily be sufficiently justifiable on the facts. In other

words there must be some special circumstances based

on full disclosure.”

 

In my view therefore, the Judgment Debtors/Applicants have failed to discharge the onus on them to show that they are financially incapacitated and constrained to pay the judgment debt in lump sum and I agree with the Judgment Creditors/Respondents that the application is anooying and vexatious and it is aimed at denying them the fruits of their labour.  The exercise of the court’s discretion can only be regarded as judicial and judicious where proper reasons are shown by the Applicants. See the case of African Continental Bank Ltd. V. Dominico Builders Company Ltd. (supra) 299-300.

 

However, I will reluctantly allow this application in the following terms;

 

1.     That the judgment debtors shall pay each of the judgment Creditors the sum of N1, 500,000.00 (One Million, Five Hundred Thousand Naira) only, on or before the 31/12/2019 as down payment.

 

2.     That the judgment debtors shall also subsequently pay each of the judgment Creditors the sum of N500,000. 00(Five Hundred Thousand Naira) only, monthly from 31/1/2020 until the judgment sum is fully liquidated.

 

3.     That in the event of any default from the part of the judgment debtors the judgment sum automatically becomes due and payable.

                                        

Ruling is entered accordingly. I make no Order as to cost.

 

 

_______________________________

HON. JUSTICE S.H. DANJIDDA

(PRESIDING JUDGE).