IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE AWKA JUDICIAL DIVISION

HOLDEN AT AWKA

BEFORE HIS LORDSHIP HON. JUSTICE J.I. TARGEMA, PhD

 

DATE: JANUARY 25, 2022                                                           SUIT NO. NICN/AWK/20/2020

BETWEEN

Mr. Henry Etaverho Onovwiemore                             -           Judgment Creditor/Applicant

 

AND

Delta State University                                          -           Judgment Debtor/Respondent

 

AND

1.     Ecobank Nigeria Ltd                                       -           1st Garnishee

2.     Zenith Bank Plc                                                            -           2nd Garnishee

3.      Polaris Bank Limited                                      -           3rd Garnishee

 

REPRESENTATION

Bamidele Uche Igbinedion, Esq. with Innocent O. Ukpai, Esq. and Olawale E. Ogundana, Esq. for the Judgment Creditor/Applicant.

M.I. Osogbue, Esq. with Professor Eric Okojie, Vitalis Nwafor, Esq. and A.M. Osogbue, Esq for the Judgment Debtor/Respondent.

Ibezim Uchechukwu, Esq.for 1st Garnishee (Ecobank Nig Plc)

Wilberforce Isetin, Esq. for 2nd Garnishee (Zenith Bank Plc)

Chinazo J. Okeke, Esq. for 3rd Garnishee (Polaris Bank Ltd)

 

JUDGMENT

INTRODUCTION

1.      This Court on 10 November 2015 had delivered judgment in favour of the present judgment creditor in Suit No. NICN/ASB/06/2015. In the said judgment, after declaring that the defendant’s action of withholding the claimant’s salary and other entitlements indefinitely since October 2012 is contrary to the contract of employment and consequently wrong, unjustifiable, illegal and unconstitutional, the  defendant/judgment debtor was ordered to pay the judgment creditor’s salary at the rate of ₦325, 000.00 (Three Hundred and Twenty Five Thousand Naira) per month effective from October 2012 till the date of filing this action totaling the sum of ₦10, 075, 000.00 (Ten Million and Seventy Five Thousand Naira Only) and thereafter the monthly rate of ₦325, 000.00 until the determination of the criminal case against the claimant before the Chief Magistrate Court sitting at Isiokolo; ₦20 Million as general and/or exemplary damages; interest on the judgment debt at the rate of 10% per annum until the entire judgment debt is fully paid. The Judgment Creditor was not so paid, hence the instant garnishee proceedings which, on the authority of Heritage Bank Ltd v. Inverlagos Oil Ltd (2018) LPELR-44801 (CA) and Polaris Bank v. Gumau & ors (2019) LPELR-47066 (CA), I note is separate and distinct from the main action that yielded the judgment sought to be enforced.

 

2.      On 10 August 2020, the judgment creditor accordingly filed a motion ex parte pursuant to section 83 (1) of the Sheriffs and Civil Process Act, (SCPA) LFN 2004, Order 51 Rules 1 and 2 of the NICN Rules 2017 and under the inherent jurisdiction of this Court.

 

3.      The judgment creditor prayed for the following orders:

A garnishee order nisi of this Honourable Court attaching the amounts standing to the credit of the judgment debtor in the accounts maintained/operated by the judgment debtor in any name whatsoever with the garnishees, for the satisfaction of the sum of ₦6, 435, 000.00(Six million four hundred and thirty five thousand naira only) judgment debt due from the judgment debtor/respondent to the judgment creditor/applicant; being the salary and accrued interest from 1 January 2019 to 30 June 2020; being an award which the NICN Coram Hon. Justice Waziri Abali, presiding Judge ordered in favour of the judgment creditor on 10 November 2015 in Suit No. NICN/ASB/06/2015 as the judgment debtor have (sic) failed, refused and neglected to comply with (or obey) the judgment.

An order of this Honourable Court directing the garnishees to file in Court and serve on the judgment creditor/applicant through his solicitors, Dele Igbinedion Chambers 14 Aimure Avenue, off Ihama Road, GRA, Benin City within 14 days from the date of receipt of the garnishee order nisi a sworn affidavit disclosing the balance in the accounts maintained or operated in any name/manner whatsoever by the judgment debtor which accounts are held with the garnishees, and to further show cause, if any, why the amount standing to the credit of the said judgment debtor should not be used to satisfy the judgment debt awarded to the judgment creditor/applicant and costs of the garnishee proceedings.

Cost of ₦200, 000.00 (Two hundred thousand naira) for the garnishee proceedings.

And for such further order(s) as this Honourable Court might deem fit to make in the circumstances of this case.

 

4.      Satisfied that the ex parte application had merit, this Court on 22 October 2020 granted the order nisi against Ecobank Nigeria Ltd, Zenith Bank Plc and Polaris Bank Limited as the garnishees asking them to at the next adjourned date show cause why the order nisi should not be made absolute. The 1st garnishee (Ecobank Nigeria Ltd) on 27 November 2020 filed an affidavit of cause indicating in paragraph 4 (b) that it has sufficient funds in the account with No. 2922001702 belonging to the judgment debtor to meet the judgment debt of ₦4, 835, 188.40 and cost of garnishee proceedings accessed at ₦200, 000.00. The 2nd garnishee (Zenith Bank Plc) on 23 November 2011 filed an affidavit of cause indicating in paragraph 3 (b) that the sum of ₦5, 033, 188.40 has been set aside from the account of the judgment debtor to offset the judgment sum. The 3rd garnishee (Polaris Bank Ltd) filed affidavit of cause indicating in paragraph 10 that the search revealed that the judgment debtor operate (sic) various account (sic) with the 3rd garnishee and the cumulative sum standing to the credit of the judgment debtor in the said various accounts with the 3rd garnishee are sufficient to satisfy the judgment debt in this case.

 

5.      Reacting to the order nisi, the judgment debtor filed a process that opposed the order nisi. In the said process, the judgment debtor asked that the order nisi be set aside. The judgment debtor’s motion was filed on 29 December 2020. The judgment creditor opposed the said process. I shall accordingly take the arguments of the parties.

 

THE JUDGMENT DEBTOR’S MOTION

The Submissions of the Judgment Debtor

6.      The judgment debtor’s motion on notice is brought pursuant to Order 17 Rule 1, Order 51 Rule 3 (1) of NICN Rules 2017, Sheriffs and Civil Process Act and under the inherent jurisdiction of this Honourable Court. In the main, the judgment debtor is praying for:

An order setting aside the service of the garnishee order nisi in the case on the judgment debtor/applicant.

And for such further order or other orders as the Honourable Court may deem fit to make in the circumstances.

 

7.      The grounds upon which the order is sought are:

Two garnishee orders nisi dated 22/10/2020 were served in this case. The first order contradicted the second order in content and in date of issue for the endorsement.

The first order was served on the judgment debtor but the second was not served on her.

There is no endorsement of return date on the second order

The error of service is fundamental and robs the Court of jurisdiction to proceed with the garnishee proceedings.

 

8.      The judgment debtor submitted a sole issue for determination i.e. whether this Honourable Court can go ahead to adjudicate on the garnishee proceedings when there is no proper service of the order nisi on the judgment debtor.

 

9.      To the judgment debtor, by the provisions of section 83 (2) of the SCPA, Order 51 Rule 3 (1) (b) of the NICN Rules 2017, service of the order nisi on the judgment debtor is his statutory right which cannot be denied him, hence the use of the word “shall”. See Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (Pt. 1515) 536 at 598-599. That it is a trite law that service of Court process to an adverse party is vital and fundamental as it confers jurisdiction on the Court to entertain the matter. See Okoma v. Udoh (2002) 1 NWLR (Pt. 748) 438 at 449.

 

10. That the judgment debtor/applicant is bringing this application at this stage in order to avert what might result to a serious miscarriage of justice and the Court assuming jurisdiction to further consider the garnishee matter when it has no jurisdiction  to do so based on the non-service of the order nisi on the judgment debtor/applicant, that the judgment debtor/applicant will not fold its hands and wait until the Court makes an order one way or the other before raising the alarm and perhaps applying for the order to be set aside. That from the affidavit evidence, it is clear that the way and manner the judgment debtor/applicant was purportedly served ran contrary to the provisions of the law and her right under the law to be served; that the judgment debtor/applicant was served with two different order nisi both dated 22nd October, 2020 (Exhibits A and B); that Exhibit ‘A’ is the first order served on the judgment debtor which carries the sum of ₦4, 835, 188.40 as the judgment debt garnished; that from the endorsement in the said order, 7 December 2020 was given as the return date; that the date on which the said notice of the order was issued 31 May 2019, a date which pre-dated the judgment creditor’s ex parte application for order nisi.

 

11. The judgment debtor/applicant’s counsel went on that when they discovered the above, they in good faith, intimated the judgment creditor’s counsel; that thereafter another attempt at service was made which resulted in Exhibit ‘B’’ that the said Exhibit ‘B’ was not served on the judgment debtor as required by law. That granted that applicant’s counsel represented the judgment debtor in the previous garnishee proceedings in NICN/07/2019 it is not an excuse to serve applicant’s counsel the second order instead of serving the judgment debtor; that as long as applicant’s counsel has not held out themselves (sic) as counsel to the judgment debtor by filing any process; that the service of the order nisi on applicant’s counsel was wrong and improper; that the law did not say that service be effected on judgment debtor’s counsel.

 

12. Learned counsel to the judgment debtor continued that the judgment sum garnished in Exhibit ‘B’ is ₦6, 435, 000.00 which is different from the judgment sum garnished in Exhibit ‘A’; that furthermore, Exhibit ‘B’ instead of being served on the judgment debtor/applicant, was served on counsel to Applicant on 3 December 2020 i.e. four days to the return date on the ealier order. That there is no return date endorsed on Exhibit ‘B’ to show that the judgment debtor was accorded his right under the law. That in S.T.B Ltd v. Contract Resources Nig. Ltd (2001) 6 NWLR (Pt. 708) 115, it was held that:

…in line with the provisions of section 83 (2) of the S&CPA and further elaboration provided by Order viii Rule 4 of the Judgment (Enforcement) Rules made under the Act, an order nisi must be served on both the garnishee and the judgment debtor within a stipulated time (emphasis the judgment debtor’s counsel).

That this was not done in this case; that there was no stipulated time as there was no endorsement as to the return date; that if counsel to the judgment debtor was to take the first return date of 7 December 2020 endorsed on the first order served on the judgment debtor as subsisting date to cover the second order, then from 3 December 2020 when it was served on the judgment debtor’s solicitors to 7 December cannot be said to be sufficient to satisfy the requirement of the law. That the fact that the said order does not carry a return date makes it incompetent and the service ought to be set aside.

 

13. Counsel to judgment debtor added that it is proper at this stage to set aside the said service as the process of service undermines the rules guiding the service of Court process; that granted that counsel called the judgment creditor’s counsel, there is no accompanying notice to show that one order is replacing the other and that counsel to judgment debtor should ignore the first order. That the second order was a fresh process which ought to be served on the judgment debtor; that the fact that the second order was not served on her is a fundamental vice which robs this Court of the jurisdiction to proceed. See Delta State Government v. Okon (2002) 2 NWLR (Pt. 752) 665 at 682 where the Court held that

Failure to effect service of Court process on a party where it is necessary to do so is a fundamental flaw which goes to the root of the adjudication. It is a vice which cannot be overlooked and an order or judgment made in that setting is a nullity and must be set aside.

 

14.  In conclusion, the judgment debtor urged the Court to set aside the services of the order nisi in this case on the judgment debtor/applicant.

 

The Submissions of the Judgment Creditor

15. The judgment creditor/respondent, in opposition to the motion of the judgment debtor/applicant, filed a 12-paragraphs counter affidavit with an accompanying written address. He also raised two issues for determination i.e.

Whether this Honourable Court does not have the power to correct its order if there is an error on the face of it.

Whether the judgment debtor has shown that it has suffered any prejudice on account of the service of the first erroneous order and the subsequent amendment and service of the second corrected version of the garnishee order nisi on both the judgment debtor and its lawyer.

 

16. To the judgment creditor/respondent, from the unchallenged deposition in paragraphs 3-5 of the affidavit of the judgment creditor, it was ironically the solicitor to the judgment debtor who initially noticed the error and brought it up to attention of the judgment creditor’s lawyer; that ordinarily, her action was worthy of commendation; that it is however strange that the judgment debtor now seeks to gain an undue advantage out of the simple error; that no human being is above mistake or typographical error can occur during the process of drawing up an order; that when that happens, the law expects this Court to take corrective measures.

 

17. Additionally , that by Order  47 Rule 22 (1) (b) of NICN Rules 2017, this Court is empowered to suo motu or on application of any party affected, correct or amend its order where there is an error on the face of it; that again, in the case of Abia State Transport Corporation & ors v. Quorum Consortium Ltd (2009) Vol. 172 LRCN page 134 at 137 Ratio 2, the Supreme Court held that:

The settled law is that rules of Court of each Court are not made for fun, but to be obeyed. Once Rules are in place they must be adhered to and not contravened originored. (Emphasis the judgment creditor/respondent).

That from the above rule, this Court obeyed its Rules by correcting its Order or Ruling; that this action impeachable. The judgment creditor/respondent then urged the Court to so hold and resolve this issue in favour of the judgment creditor.

 

18. For issue two, the judgment creditor submitted that it is indisputable that the judgment debtor is indebted to the judgment creditor by virtue of the judgment of this Honourable Court delivered on 10 November 2015 in Suit No. NICN/ASB/06/2015; that it is also indisputable that on 22 October 2020, this Honourable Court considered the ex parte motion of the judgment creditor and made a garnishee order nisi to be ₦4, 835, 188.40 and cost of ₦200, 000.00 instead of ₦6, 435, 000.00 and cost of ₦200, 000.00 which was duly granted by this Honourable Court; that the fact was commendably brought to the attention of the judgment debtor’s solicitor. That it is also agreed between the parties that the error was promptly corrected and the correct version of the order nisi was served on the garnishees, the judgment debtor and even on the solicitors to the judgment debtor; that the judgment debtor’s solicitors admitted being served the correct order

 

19. That in the light of the above, the judgment creditor/respondent submits humbly that the judgment debtor does not have any grievance or complaint; that the judgment debtor is not disputing its indebtedness to the judgment creditor; that it is also not disputing the garnishee amount; that it merely wants the garnishee order set aside merely because of a typographical error on the face of the garnishee order which has since been corrected.

 

20. That the judgment debtor’s argument that it was not given a return date for the garnishee proceeding is not cognizable; that this Court did not sit on the earlier schedule date of 7 December 2020; that thereafter, the judgment debtor was duly notified of the adjourned date and it participated fully in the garnishee proceedings through its solicitors; that hence, the judgment debtor was given fair hearing.

 

21. In conclusion, the judgment creditor urged the Court to graciously hold that its application lacks merit; and to dismiss same and make the garnishee order absolute against any one or all the banks. The judgment creditor urged the Court to so hold and accordingly.

 

Judgment Debtor’s Reply on Points of Law

22. In replying on points of law, the judgment debtor/applicant raised the sole issue of whether this application ought not to be granted in the interest of justice. The judgment debtor/applicant then proceeded to rehash the arguments it already advanced in the written address in support of its motion on notice dated 29 December 2020 with the issue whether this Court can go ahead to adjudicate on the garnishee proceedings when there is no proper service of the order nisi on the judgment debtor. It will be idle/pointless repeating the arguments here. By law where a reply on points of law translates to re-arguing a party’s written address or brief of argument, it will be discountenanced by the Court. See Ecobank (Nig) Ltd v. Anchorage Leisures Ltd & ors (2016) LPELR-40220 (CA). In Oguanuhu & ors v. Chiegboka (2013) LPELR- 19980 (SC), the Supreme Court held that a reply brief is not meant to be a repetition of the arguments in the Appellant’s brief. It is not an opportunity to re-emphasize the arguments in the Appellant’s brief. On the contrary, a reply brief, as the term implies, replies to the respondent’s brief. See also UBA v. Prima Impex (Nig) Ltd & ors (2017) LPELR-42015 (CA), Adeta v. Nigerian Army (2016) LPELR-40235 (CA) and Eligwe v. Okpokiri & ors (2014) LPELR-24213 (SC).

 

23. The 1st and 2nd garnishees did not react to the judgment debtor’s motion given that as garnishees, they have no say regarding the motion. The 3rd garnishee however raised similar issues canvassed by the judgment debtor and judgment creditor in the 3rd garnishee’s affidavit to show cause especially paragraphs 3, 4, 5, 6, 7 and 8 thereof.

 

Address on Issue Raised Suo Motu By the Court

24. On 23 June 2021 when this matter came up for further hearing, I observed that the order this Court made in this suit on 10 November 2015 by this Court in Suit No. NICN/ASB/06/2015 especially order 2 was that claimant’s salaries be paid until the determination of the criminal case against the claimant before the Chief Magistrate Court of Delta State sitting at Isiokolo; and that as the criminal case was withdrawn unconditionally on 16/6/2020 from the Magistrate Court, counsel to both parties were ordered to address the Court on why payments to the claimant/applicant should continue after the withdrawal of the case.

 

Judgment Creditor’s Written Address in Support of the Enforcement of Judgment till June 2020

25. The judgment creditor raised a sole issue for determination i.e. whether by the subsisting judgment of this Honourable Court delivered on 10 November 2015, the judgment debtor/respondent is liable to pay the accrued salaries of the judgment creditor/applicant from January 2019 till June 2020 before the criminal charge was determined.

 

26. To the judgment creditor, this Honourable Court entered judgment in favour of the judgment creditor/applicant on 10 November 2015 and granted many reliefs including the reliefs reproduced below:

I make an order compelling the respondent to pay the applicant’s salary at the rate of ₦325, 000.00 per month effective from October 2012 till the date of filing the action totaling the sum of ₦10, 075, 000.00 (Ten Million and Seventy Five Thousand Naira Only) and thereafter the monthly rate of ₦325, 000.00 (Three Hundred and Twenty Five Thousand Naira) Until the determination of the criminal case against the claimant before the Chief Magistrate Court of Delta State sitting at Isiokolo (Emphasis Judgment creditor’s counsel).

 

27. That it is trite where the wording of an enactment is clear and unambiguous, the said law is necessarily given its literal and natural meaning, without more. See Oteri Holdings Ltd v. Heritage  Banking Co. Ltd (2020) LPELR-50802 (CA) wherein the Court of Appeal per Ebiowei Tobi, JCA at page 38, paragraphs B-C held thus:

It is a cardinal rule of interpretations that where words are clear in their meaning a literal interpretation should be given to them. See Gana v. SDP & ors (2019) LPELR-47153 (SC); Ugwuanyi v. NICON Insurance Plc (2013) LPELR-20092 (SC).

See also Marwa & ors v. Nyako & ors (2012) LPELR-7837 (SC), Ifezue v. Mbadugha & anor (1984) LPELR-1437 (SC).

 

28. The judgment creditor/applicant submitted that by parity of reasoning, when a judgment of Court is clear and unambiguous, it will only admit its natural and literal meaning and interpretation, and the Court is urged to so hold.

 

29. That the reliefs and orders made by this Honourable Court on 10 November 2015 is (sic) unambiguous and it ordered the judgment debtor/respondent should pay the salaries of the judgment creditor/applicant until the determination of the criminal charge in the Magistrate Court of Delta State; and the Court is urged to so hold.

 

30. The judgment creditor/applicant continued that by Exhibit 1, the certified true copy of the Enrolment of order of the Magistrate Court of Delta State the criminal charge against the judgment creditor/applicant was determined in June 2020 when the said charge was struck out while the judgment creditor/applicant was discharged. That the judgment debtor/respondent was bound to comply with the judgment of the Honourable Court by paying the judgment creditor’s salaries till June 2020 before the criminal charge was struck out; and the Court is urged to so hold. That it is trite that it is the unqualified duty of any party or litigant to comply with the judgment of a Court unless the judgment is set aside. See Alhassan v. FRN (2016) LPELR-40787, Dan-Agundi v. Ballah & ors (2019) LPELR-48898 (CA) and European Soaps & Detergent Ltd v MV Beer & Co Ltd (2017) LPELR-11873 (CA).

 

31. That it was a constitutional duty on the judgment debtor/respondent to continue to comply with the judgment of this Court, including payment of salaries of the judgment creditor/applicant from 1 January 2019 till June 2020 before the charge was determined an (sic) the judgment creditor discharged; that is the import of section 287 (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended); and the Court is urged to so hold.

 

32. The judgment creditor/applicant submitted that the garnishee proceedings pending before this Court was appropriately and competently commenced in accordance with the orders/reliefs granted in the subsisting judgment of this Court delivered on 10 November 2015; and the Court is urged to so hold.

 

33. In conclusion, the judgment creditor/applicant maintained that by the subsisting judgment of this Court entered on 10 November 2015, the judgment debtor/respondent is bound to continue to pay the salaries of the judgment creditor/applicant until the determination of the criminal charge in Magistrate Court of Delta State against the judgment creditor/applicant; that the said criminal charge was determined in June 2020 wherein the charge was struck out and the judgment creditor/applicant was discharged; that the judgment debtor/respondent is bound to pay the accrued salaries of the judgment creditor/applicant from 1 January 2019 till June 2020 before the criminal charge was determined; that accordingly it is submitted that this garnishee proceedings was competently commenced by the judgment creditor/applicant and the garnishee order nisi made by this Court on 22 October 2020 was legally and appropriately ordered by the Court.

 

Judgment Debtor’s Reply to the Judgment Creditor’s Written Address on Whether the Garnishee Proceedings can Continue in the Face of the Withdrawal of the Criminal Charge Against the Judgment Creditor at the Magistrate Court.

34. In reply to the judgment creditor’s written address, the judgment debtor/respondent submitted two issues for determination i.e.

Whether by the termination of the criminal trial at the Magistrate Court Isiokolo in June 2020, the judgment creditor/applicant can still bring and sustain this garnishee proceedings.

Whether the enforcement of this judgment delivered on 10 November 2015 is not caught up by the Statute of Limitation Act 1980.

 

35. As regard issue one, the judgment debtor/respondent submitted that where a judgment is predicated on the happening of an event, it is expected that once that event has happened, the judgment creditor/applicant is estopped from further acting in reliance to that judgment ; that the criminal matter upon which the judgment creditor/applicant is seeking to enforce has been terminated and that being the case, he ought to seek alternative procedure of enforcing his rights; that the judgment creditor/applicant has initiated Suit No. NICN/ASB/34/2020 between Mr. Henry Etaverho Onovwiemore v. Delta State University which is still pending before this Honourable Court. That this present application for garnishee proceedings herby (sic) instituted at the instance of the judgment creditor/applicant can be accommodated in the said suit and thereby save this Honourable Court the rigors of multiplicity of cases. See Ajali & anor v. Okuri-Eze & ors (2013) LPELR-22592 (CA) on essential elements that would constitute abuse of Court processes.

 

36. That an excerpt from among the reliefs the judgment creditor/applicant claims the said suit reads thus:

“… b. A declaration that the defendant’s action of withholding the claimant’s salary and other entitlements indefinitely since July 2020 till date is contrary to the parties’ Contract of Employment, the Delta State University Law, Chapter 89, Laws of Delta State of Nigeria and Chapter Eight Regulations 7 (vi) (a), (a) (sic) and (c) of the Delta State University Regulations Governing the Service of Senior Staff (HATISS 6-16) (UASS 01-07) and section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and consequently wrong, unjustifiable, illegal and unconstitutional”.

In the circumstances, the judgment debtor/ respondent urged the Court to hold that the garnishee proceeding filed by the judgment creditor herein and dated 22nd July 2020 has been overtaken by events and same should be jettisoned with.

 

37. On issue two, the judgment debtor/respondent submitted that by virtue of section 24 of the Statute of Limitation Act 1980, the six years statutory period for the enforcement of the judgment by the judgment creditor/applicant against the judgment debtor/respondent expired on 10 November 2021 and therefore the entire judgment or any portion therefore that has not been enforced before now remains unenforceable; and the Court is urged to so hold.

 

38. In conclusion, the judgment debtor/respondent stated that the Court directed that counsel herein address (sic) the Court on the propriety (sic) of this garnishee proceeding filed by the judgment creditor/applicant on 22 July 2020; that counsel to the judgment creditor/applicant dwelled so much on interpretation of statutes; that this is not the issue here; that the only issue here is whether the present garnishee proceeding commenced by the judgment creditor/applicant is sustainable after the judgment debtor/respondent has withdrawn the criminal charge against him; that it is a straight forward issue. That his action has been overtaken by the event of the withdrawal of the criminal charge at the Magistrate Court because at the time the matter was withdrawn the demand for the money has (sic) not been made and everything about that criminal case is (sic) gone and nothing can be relied on it anymore; more so when the judgment creditor/applicant has filed a separate suit dated 9/9/2020 Suit No. NICN/ASB/34/2020 between Mr. Etaverho Onovwiemore v. Delta State University for arrears of salary which can accommodate their present application especially as the said new case has not commenced.

 

COURT’S DECISION

39. I have given due consideration to all the processes and submissions of the parties. Judgment in this suit was ealier scheduled for 19 January 2022. However, due to security challenges and the egregious stay-at-home, it was rescheduled as indicated. I will consider the issue raised suo motu first before considering the judgment debtor/applicant’s motion on notice praying for an order setting aside the service of the garnishee order nisi on the judgment debtor/applicant; and then conclude with the application for garnishee order absolute.

 

 

 

Decision of the Court on the Issue raised Suo Motu

40. I indicated earlier that the order of the Court in Suit No. NICN/ASB/06/2015 dated 10 November 2015 in order 2 of its judgment was that the claimant’s salaries be paid until the determination of the criminal case against the claimant before the Chief Magistrate Court of Delta State sitting at Isiokolo. In view of the fact that the said matter was withdrawn unconditionally on 16/6/2020 from the Magistrate Court, I directed counsel to both parties to address this Court as to why payments to claimant should subsist after the withdrawal of the suit.

 

41. To the judgment creditor/applicant, by the subsisting judgment of this Court entered on 10 November 2015, the judgment debtor/respondent is bound to continue to pay the salaries of the judgment creditor/applicant until the determination of the criminal charge in Magistrate Court of Delta State against the judgment creditor/applicant; that the said criminal charge was determined in June 2020 wherein the charge was struck out and the judgment creditor/applicant was discharged; that as such, the judgment debtor/respondent is bound to pay the accrued salaries of the judgment creditor/applicant from 1 January 2019 till June 2020 before the criminal charge was determined. That the garnishee proceedings was competently commenced by the judgment creditor/applicant and the garnishee order nisi made by this Court on 22 October 2020 was legally and appropriately ordered by this Court.

 

42. To the judgment debtor/respondent, the criminal matter upon which the judgment creditor/applicant is seeking to enforce has been terminated and that being the case, he ought to seek alternative procedure of enforcing his rights; that this application for garnishee proceedings can be accommodated in the suit filed by the judgment creditor/applicant i.e. NICN/ASB/34/2020 between Mr. Henry Etaverho Onovwiemore v. Delta State University and thereby save this Court the rigors of multiplicity of cases. See Ajali & anor v. Okuri-Eze & ors (supra). It is the judgment debtor/respondent’s contention that the garnishee proceedings filed by the judgment creditor dated 22 July 2020 has been overtaken by events and same should be jettisoned with especially as same is caught up by section 24 of the Statute of Limitation Act 1980.

 

43. In the judgment of this Court in Suit No. NICN/ASB/06/2015, delivered on 10 November 2015, this Court made an order compelling the respondent therein (Delta State University) to pay the applicant’s salary at the rate of ₦325, 000.00 per month effective from October 2015 till date of filing the said suit totaling ₦10, 075, 000.00 (Ten Million Naira and Seventy Five Thousand Naira Only) and thereafter the monthly rate of ₦325, 000.00 (Three Hundred and Twenty Five Thousand Naira) until the determination of the criminal case against the claimant before the Chief Magistrate Court of Delta State sitting at Isiokolo. Having considered the submissions of the judgment creditor/applicant and the judgment debtor/respondent, I am of the view that the process filed by the judgment creditor seeking an order nisi is in respect of the terminated suit as ordered by the Court in Suit No. NICN/ASB/06/2015. It is therefore my contemplation that Suit No. NICN/ASB/34/2020 between Mr. Henry Etaverho Onovwiemore v. Delta State University filed on 9th September 2020 is a fresh and separate suit. I so hold. I hold further that same is distinct from the garnishee proceedings in Suit No. NICN/ASB/06/2015 between the judgment creditor/applicant and judgment debtor/respondent in which judgment was delivered on 10 November 2015.

 

Judgment Debtor/Applicant’s Motion on Notice for an Order Setting Aside the Service of Garnishee Order Nisi in This Case on the Judgment Debtor/Applicant.

44. It is the judgment debtor/respondent’s argument that service of the order nisi on the judgment debtor contravened section 83 (2) of the SCPA and Order 51 Rule 3 (1) (b) of NICN Rules 2017; that the judgment debtor was served with two different order nisi both dated 22nd October 2020 (Exhibit ‘A’ and ‘B’); that Exhibit ‘A’ carries the sum of ₦4, 835, 188.40 as the judgment debt garnisheed while the judgment garnisheed in Exhibit ‘B’ instead of being served on the judgment debtor was served on counsel to judgment debtor on 3 December 2020, four days to the return date on the earlier date; that there are no return date endorsed on Exhibit B to show that the judgment debtor was accorded his right under the law. See Nigerian Breweries Plc v. Dumuje (supra), Okoma v. Udoh (supra), STB Ltd v. Contract Resources Nig. Ltd (supra) and Delta State Government v. Okon (supra).

 

45. To the judgment creditor, this Court, by Order 47 Rule 22 (1) (b) of NICN Rules 2017 is empowered to suo motu or on application of any party affected, correct or amend its order where there is an error on the face of it. See also Abia State Transport Corporation & ors v. Quorum Consortium Ltd (supra). That it is indisputable that the judgment debtor is indebted to the judgment creditor by virtue of the judgment of this Court delivered by this Court on 19 November 2015 in Suit No. NICN/ASB/06/2015; that it is indisputable that on 22 October 2020, this Court considered the ex parte motion of the judgment creditor and made a garnishee order nisi for the sum of ₦6, 435, 000 and cost of ₦200, 000.00 against three garnishees; that the error in the order nisi sum was pointed out and promptly corrected and served on all the parties.

 

46. The Court’s record as purposely gleaned from the processes filed by the judgment creditor/applicant in pages 1 to 61 of the Case File in Suit No. NICN/AWK/20/2020 and pages 1 to 7 of the Judge’s File clearly indicates that the motion ex parte filed by the judgment creditor/applicant sought an order nisi attaching the sum of ₦6, 435, 000.00 (Six million, four hundred and thirty five thousand naira) being the salary and accrued interest of the judgment creditor/applicant from 1 January 2019 to 30 June 2020 against the judgment debtor by virtue of the judgment of this Court delivered on 10 November 2015 in Suit No. NICN/ASB/06/2015 as the judgment debtor failed, refused and neglected to comply with (or obey) the judgment; and cost of ₦200, 000.00 (Two Hundred Thousand Naira) for this garnishee proceedings. Of course, the law is trite that a Court can suo motu make reference to the case file before it and make use of any document it finds necessary. See Ajanaku & anor v. Osuma (2013) LPELR-20528 (CA). See also Olaiya v. IGP & ors (2015) LPELR-40920 (CA), Abijoh v. Fagbohun & anor (2015) LPELR-3567 (CA) and Famurewa v. Onigbogi & ors (2010) LPELR-9142 (CA).

 

47. In paragraphs 3, 4, 5. 6, 7, 8 and 9 of the affidavit in support of the motion on notice filed by the judgment debtor/applicant praying for an order setting aside the service of the garnishee order nisi on the judgment debtor/applicant, Vitalis Nwafor, Esquire, a legal practitioner working with Osugbue & Associates of counsel to the judgment debtor/applicant stated thus:

3. That I have the consent of the judgment debtor/applicant and her solicitors to depose to this affidavit.

4. That the judgment debtor/applicant availed us with a copy of the decree order nisi dated 22/10/2020, which was served on them by this Court

5. That in the said order, it was stated that this Honourable Court made an order for the judgment sum of ₦4, 835, 188.40 (Four Million Eight Hundred and Thirty Five Thousand one Hundred and Eighty Eight Naira Forty Kobo) and cost of ₦200, 000.00 (Two Hundred Thousand Naira).

6. That the return date endorsed on the said order was 7/12/2020 and the date of the endorsement was 31/5/2019. The said order and the endorsement is annexed hereto as Exhibit ‘A’.

7. That upon discovering that there might be a mix-up somewhere, we immediately called the judgment creditor’s counsel, Dele Igbinedion, Esq. on phone and requested to be availed with a copy of the motion ex parte which they filed and he obliged us.

8. That upon the perusal of the said motion ex parte, we discovered that the date on which the said order was issued for service i.e. 31/5/2019 pre-dated (sic) the date of the motion ex parte filed by the judgment creditor which is 10/8/2020.

9. That as if that was not enough we were on the 3/12/2020 served with another order nisi from this Honourable Court dated the same 22/10/2020 but with the sum of ₦6, 435, 000.00 (Six Million Four Hundred and Thirty Five Thousand Naira) and cost of ₦200, 000.00 (Two Hundred Thousand Naira) as judgment sum garnished an (sic) amount different from the ealier order served on the judgment debtor/applicant. The said order is annexed hereto as Exhibit ‘B’.

 

48. By Race Auto Supply Co. Ltd & ors v. Akibo (2006) LPELR-2937 (SC) “It is now well settled beyond any doubt that where a judgment is in need of clarification or correction in respect of clerical slips or omission, there is power under the law for the same Court that delivered the judgment to correct the clerical slips or accidental omissions. See the cases of Asiyanbi & ors v. Adeniji (1967) 1 All NLR 82; Anyasinti Umunna & 5 ors v. Animuda Okwuraiwe & 3 ors (1978) 6-7 SC I”. The  Apex Court went ahead to cite Berliet (Nig) Ltd v. Kachalla (1995) 9 NWLR (Pt. 420) 478 at p 493-494, where the Court held that even where the judge of the High Court who delivered the judgment for any reason is not available, any other judge in exercise of the general powers under section 6 (6) (a)  and 236 (1) of the 1979 Constitution, should be in as good a position as the judge who delivered the judgment to correct any palpable slips or errors in the judgment; that in Umunna & 5 ors v. Okwuraiwe & ors (supra), the Court affirmed the power of the trial High Court to amend or correct its judgment when its attention was drawn to the error while the judgment was delivered. So, by the slip rule principle, it is safe to assert that the Apex Court, Court of Appeal, this Court and indeed other trial Courts have the power to correct technical or accidental errors which occur in the judgment or order of the Court in expressing its manifest intensions. I so hold. See Council, FUT Akure v. Ajidahun (2012) LPELR-9478 (CA), Afrab Chem. Ltd v. Pharmacist Owoduenyi (2014) LPELR-23613 (CA), Ogedengbe v. Onibode (2005) LPELR-25765 (CA), Eze v. Obiefuna (1995) 6 NWLR (Pt. 404) 639 at 656-657 and Grano v. State (1968) LPELR-25436 (SC). 

 

49. By the express depositions of Vitalis Nwafor, Esq of counsel with Osugbue & Associates for the judgment debtor in paragraphs 4 to 9, the “mix-up somewhere” discovered by them and notification of the judgment creditor’s counsel, was straightened out by the supplanting of Annexure ‘A’ with Annexure ‘B’ (which was the actual sum garnished in reflection of the processes filed by the judgment creditor and the notes of the Court that tallied at ₦6, 345, 000.00). In FRN V. Adewunmi (2007) 10 NWLR (Pt. 1042) 399 at 427, Ogbuagu, JSC opined that ‘substitution is the same thing as an amendment, and as amendment, whenever made by the Court, relates back to the date of the original document or process.’ Therefore, the argument of the judgment debtor that two garnishee orders nisi dated 22/10/2020 were served in this case is untenable and accordingly discountenanced. I so hold. The correction of the erroneous sum of ₦4, 835, 188.40 with the correct sum of ₦6, 435, 000.00 was therefore not a contradiction as argued by the judgment debtor or at all. I so hold.

 

50. The other grounds on which the judgment debtor sought that the garnishee order nisi in this case be set aside are that the first order was served on the judgment debtor but the second was not served on her; that there is no endorsement of return date on the second order and that the error of service is fundamental and robs the Court of jurisdiction to proceed with the garnishee proceedings. I indicated ealier in this judgment that Vitalis Nwafor, Esq., a legal practitioner working with Osogbue & Associates of counsel to the judgment debtor stated in his affidavit in support of the motion to set aside the service of the garnishee order nisi on the judgment debtor that he has the consent of the judgment debtor and her solicitors to depose to the affidavit; that the judgment debtor/applicant availed his solicitor (Osogbue & Associates) with a copy of the decree order nisi dated 22/10/2020, which was served on them by the Court; that upon discovering that there might be a mix up somewhere, they immediately called the judgment creditor’s counsel on phone and requested to be availed with a copy of the motion ex-parte which they filed “and he obliged us”. It goes without saying that a party must be served before he can engage the services of counsel. Personal service on the judgment debtor having been established and acknowledged in the instant case as required by law, subsequent actions of counsel representing the judgment debtor have, eo ipso, conferred validity on these proceedings. See the recent decision of the Supreme Court in Odey v. Alaga (2021) LPELR-53408 (SC). As Lord Steyn once said, “In law, context is everything.” (See Regina v. Secretary of State for the Home Department, Ex Parte Daly (2001) 3 All ER 433, (2001) 1 AC 532. On the duty of counsel in the conduct of his client’s case, the Apex Court in Ikechukwu Ikpa v. The State (2017) LPELR-42590 (SC) held per Augie, JSC thus:

It goes without saying that the fact that the Appellant was represented by counsel is not a mere trifle, as he has indicated. This is because, as Galinje, JCA (as he then was) observed in Adegboye v. Salawu (2013) LPELR-22140 (CA), counsel has an unflinching obligation to forcefully defend his client’s case within the ambit of the law and the decorum with which the profession is known for … For this is the reason why lawyers are employed to handle matters in Court so as to excel where laymen would be unable to cope.

 

51. Where, as narrated by the judgment debtor’s solicitors, the first order was served on the judgment debtor and the solicitors were conversant with the facts of this case as averred in paragraph 2 of the affidavit in support of their motion on notice; and the solicitors had the consent of the judgment debtor to depose to the affidavit in support of their motion on notice; and the judgment debtor availed the engaged solicitors with a copy of the decree order nisi dated 22/10/2020; that the solicitors to the judgment debtor called out the judgment creditor’s solicitors and perused the said motion ex parte, etc., why would the solicitors to the judgment debtor still insist that the second (sic) garnishee order nisi be served on the judgment debtor. I do not think there is need for that. I so find. In my view, service of the corrected garnishee order nisi on the judgment debtor’s solicitors is proper service. I so hold. See Ports & Marine Services Ltd v. Umarco (Nig) Ltd & ors (2016) LPELR-41487 (CA), Zakirai v. Muhammed & ors (2017) LPELR-42349 (SC) and Nyako v. Adamawa State House of Assembly & ors (2016) LPELR-41822 (SC).

 

52. On the argument that there is no endorsement of return date on the second order, the simple explanation is that there is no need for that as the return date had already been indicated on the first order. What changed was the garnishee order nisi sum of ₦6, 435, 000.00 instead of ₦4, 835, 188.40 in the first order. Be that as it may, it is trite law that hearing notice will not be issued or served on parties who already know or are reasonably presumed to have known of the date on which a matter is slated for hearing. See S&D Construction Company Limited v. Chief Bayo Ayoku & anor (2011) LPELR-2965) (SC), Etsako West LGC v. Usman (2014) LPELR-23023 (SC), Gabdo v. Usman (2015) LPELR- 25678 (CA), Nnanah v. Usoro (2013) LPELR-20822 (CA) and SCOA (Nig) Plc & anor v. Registered Trustees of Methodist Church (2016) LPELR-40194 (CA).

 

53. All said and done, I do not see any merit in the application of the judgment debtor praying for an order setting aside the service of the garnishee order nisi in this case on the judgment debtor/applicant. Same is accordingly dismissed.

 

Decision of the Court on Whether to Make the Garnishee Order Nisi Absolute

54. In its affidavit to show cause, the 3rd garnishee averred that it cannot fathom how two orders were made by this Court same day but disclosing different sums of money as judgment owed in the same subject Suit No. NICN/AB (sic)/06/2015; that this Court had ealier made an order nisi and order absolute in NICN/ASB/02/2018 against the 2nd garnishee (Zenith Bank Plc) and also discharged the 3rd garnishee in respect of the same subject Suit No. NICN/AB (sic)/06/2015; that the instant garnishee proceeding is an abuse of Court/judicial process meant to harass/intimidate and overawe the 3rd garnishee with respect to a judgment debt that was made absolute and it was also discharged from.

 

55. Firstly, from checks carried out, this Court does not have any suit number as NICN/AB (sic)/ 06/2015 in its entire records whatsoever. Secondly, even if this Court had made an order nisi and order absolute in NICN/ASB/02/2018 against the 2nd garnishee herein and also discharged the 3rd garnishee in respect of the same subject (sic) Suit No. NICN/AB (sic)/06/2015, does the 3rd garnishee or Chinazo J. Okeke, Esq. of Trulaw Chambers (counsel to 3rd garnishee) not know that garnishee proceeding is “sui generis”, although it flows from the judgment that pronounced the debt? See CBN v. Okefe (2015) LPELR-24825 (CA). In Commissioner of Police Adamawa State v. Maiyini Century Company Ltd (2017) LPELR-43025 (CA), the Court of Appeal held per Omoleye, JCA thus:

It (garnishee proceeding) is therefore a specie of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due or accruing due from him to the judgment debtor, or as much of it as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceedings (Emphasis the Judex).

See also Oceanic Bank Plc v. Oladepo (2012) LPELR-1970 (CA), UBA Plc v. Hon. Iboro Ekanem (M) Paragen Eng. Ltd (2009) LPELR-8428 (CA), Union Bank of Nigeria Pc v. Boney Marcus Industries Ltd (2005) 13 NWLR (Pt. 943) 654 at page 666 (SC). And by section 83 (1) of SCPA, “the Court may, upon the ex parte application of a person who is entitled to the benefit of a judgment for the recovery of money and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount… order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order together with the costs of the garnishee proceedings…” (Emphasis the Judex).

 

56. Regarding the role of a garnishee in garnishee proceeding, the Apex Court held in  Guaranty Trust Bank Plc v. Innoson Nigeria Limited (2017) LPELR-42368 (SC) per Kekere-Ekun, JSC at page 25, paras B-D thus:

The only duty of a garnishee in garnishee proceedings is to satisfy the Court why the funds in its possession belonging to the judgment debtor should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor nor to protect the debtor’s money in its possession. See Oceanic Bank Plc v. Michael Olusegun Oladepo & anor (2012) LPELR-19670 (CA).

 

57. Furthermore on the role of a garnishee in a garnishee proceeding, the Court of Appeal in The Governor of Imo State & anor v. Ogoh & ors (2015) LPELR-25949 (CA) held per Mbaba, JCA thus:

A garnishee is under a duty to obey the order of Court called order nisi once the account(s) showing the funds of the judgment debtor in its (Garnishee’s) custody is attached, and the accounts show evidence of funds to satisfy the judgment debt, either in full or in part. It is not open to the garnishee to device a means or way to save or help the judgment debtor, or to act as defence counsel for the judgment debtor by showing why the funds in its custody may not be applied to satisfy the judgment debt.

See also Total Upstream (Nig) Ltd v. A.I.C Ltd & ors (2015) LPELR-25388 (CA), Skye Bank Plc v. David & ors (2014) LPELR-23731 (CA)        and UBA v. SAS & ors (2015) LPELR-40394 (CA), Section 83 (1) of SCPA. In the light of the law as stated above, the unbridled pontifications of learned counsel to the 3rd garnishee in the affidavit to show cause is deprecated and accordingly discountenanced. I so hold.

 

58. I now proceed to the question whether this Court can make absolute the garnishee order nisi it made on 22 October 2020 given that both the judgment debtor’s motion and the 3rd garnishee’s representations have been dismissed. I pointed out ealier that the garnishees filed their respective affidavit of cause that met the terms of the order nisi. This means that effectively the garnishees have not shown any cause why the order nisi should not be made absolute.

 

59. In the three cases of Polaris Bank v. Gumau & ors (2019) LPELR-47066 (CA) at 34-37, Sterling Bank Plcv. Gumau & ors (2019) LPELR-47067 (CA) 1 at 19-35 and Fidelity Bank Plc v. Gumau & anor (2019) LPELR-47068 (CA), His Lordship, Abiru, JCA provided when a garnishee order nisi can be made absolute. In his words:

… where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability fails to condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, the trial Court can proceed to make an order of garnishee absolute, notwithstanding the affidavit to show cause. Skye Bank Plc v. Colombara & anor (2014) LPELR-22641 (CA), Governor of Imo State v. Ogoh (2015) LPELR-25949 (CA), Access Bank Plc v. Adewusi (2017) LPELR-43495 (CA), First Bank of Nigeria Plc v. Okon (2017) LPELR-43530 (CA), Heritage Bank Ltd v. Interlagos Oil Ltd (2018) LPELR-44801 (CA), First Bank of Nigeria Plc v Yegwa (2018) LPELR-45997 (CA).

 

60. The judgment creditor’s affidavit (pages 3 to 9 of the case file in Suit No. NICN/AWK/20/2020) is clear in asserting that the garnishee holds the judgment debtor’s money in his “Affidavit in support of the motion Ex Parte” filed on 10 August 2020, the judgment creditor averred in paragraph 29 of his affidavit as follows:

That as the Chief Accountant of the Judgment Debtor, I know that the Judgment Debtor has sufficient funds in:

a.      Account Number 2922001702 with the 1st Garnishee branch in Abraka, Delta State, and

b.      Account numbers which I cannot remember with the 2nd garnishee branch in Abraka, Delta State, and

c.      Account with Numbers: 1751073450, 1763877673, 1763881764, 1763881771, 17633881788, 1763881795, 4090274052, 4090165585, 4090168146, 4150063813 with the 3rd Garnishee’s branch in Abraka, Delta State.

The garnishee did not contest these facts. There is no countering affidavit or statement from the garnishee showing that these account numbers are either non-existent or wrong. I take it, and so hold, that the accounts exist in these numbers and are true of the judgment debtor’s banking relationship with the garnishees. There is accordingly no impediment to make the garnishee order nisi of 22 October 2020 absolute.

 

61. In praying for the garnishee order, the judgment creditor had prayed in relief (1) for the sum of six million four hundred and thirty five thousand naira (₦6, 435, 000.00) as the judgment debt plus simple interest and in relief (3) for Two Hundred Thousand Naira (₦200, 000.00) as cost for this garnishee proceedings. These are the sums that the garnishee order nisi was issued in respect of.

 

62. I find the application of the judgment creditor for the order nisi of 22 October 2020 to be made absolute meritorious. I hereby grant it and so make the following orders:

a)     The garnishee order nisi of 22 October 2020 made by this Court in this matter in respect of the sum of Six Million Four Hundred and Thirty Five Thousand Naira Only (₦6, 435, 000.00) to be paid by the 3rd Garnishee to the judgment creditor is hereby made absolute.

b)    The sum of Two Hundred Thousand Naira Only (₦200, 000.00) being cost of the garnishee proceedings to be paid by the 1st garnishee to the judgment creditor.

c)     The 2nd Garnishee (Zenith Bank Plc) is accordingly discharged.

d)    The sums ordered in (a) and (b) above to be paid within 30 days of this judgment, failing which they shall attract 10% simple interest per annum until they are fully paid.

 

63. Judgment is entered accordingly. I make no order as to costs

 

 

Hon. Justice J.I. Targema, PhD