IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE CALABAR JUDICIAL DIVISION

HOLDEN AT CALABAR

BEFORE: HONOURABLE MR. JUDSTICE SANUSI KADO

28^TH DAY OF OCTOBER, 2026                                  SUIT NO. NICN/CA/27M/2026

BETWEEN:

Sylvester Ogar & 15 Ors ………………………… Judgment Creditors Respondents

AND

CROSS RIVER STATE GOVERNMENT & 2 Ors …………………. Judgment Debtors

AND 

Ecobank Nigeria Limited …………………………………………. Garnishee/Applicant

RULING

1.       This deal with a motion on notice dated the 20/7/2026, brought pursuant to order 35 rule 7 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 and under the inherent jurisdiction of the court. The application is praying for:-

1.       An order setting aside the order absolute made by this Honourable court in suit   number NICN/CA/27M/2026 made against the applicant on 9^th July, 2026.

2.     An order of this Honourable court restraining the judgment creditor, his privies and the Registrar cum  Chief bailiff from taking steps to execute or enforce the order absolute made by this Honourable court on 9^th July, 2026, pending the hearing and determination of this application.

3.      And any other order(s) as this Honourable court may deem fit to make in the circumstances of this suit.

2.                 The grounds for the application were given as follows:-

a.                 The Supreme court have(sic) held that the court have (sic) jurisdiction to vacate their decision, Otu v ACB Int’l (2008) 3 NWLR (Pt.1073) 178.

b.                 The law is that an order absolute can be set aside if fresh facts becomes available which was not disclosed. Unity Bank v Benedick (2021) LPELR-54549(CA).

3.                  The application is supported by a 14 paragraphs affidavit sworn to by one Ifeanyi Essien, a manager with the applicant.

4.                 In the affidavit in support the reason given for this application is that in the course of obtaining approval from management to pay the money, it was discovered that the amount disclosed in the affidavit to show cause form part of an encumbered amount which was subject of an appeal in respect of Court of Appeal judgment delivered on 12/12/2023.  The reason given why the judgment sum was still in the custody of the garnishee/applicant and un-dissipated was that after the judgment was obtained, the judgment debtor appealed against the judgment to the Supreme Court. It was also stated that the judgment debtor is indebted to the garnishee/applicant to the tune of N463,000,000.00 (Four Hundred and Sixty-Three Million Naira), being the balance from an un-serviced facility of N1,000,000,000.00 (One Billion Naira), which garnishee/applicant granted the judgment debtor.

5.                 A written address accompanied the motion on notice for setting aside, wherein a single issue was formulated to wit:

‘Whether this application is meritorious’.

6.                 S. O. Onah, Esq; counsel for the garnishee/applicant in arguing in favour of grant of the application relied on the deposition in the affidavit in support. Counsel also adopted the written address as his argument.

7.                 In arguing the sole issue counsel submitted that as a general rule, every court has inherent jurisdiction on application to set aside its judgment/decision. In support of this contention counsel relied on the case of Otu v ACB Int’l (2008) 3 NWLR (Pt.1073) 178. Counsel further argued that a court has inherent jurisdiction to set aside its decision where there has been fundamental defect in the proceedings such as where the court lacked jurisdiction to entertain the action, also on grounds of fraud or misrepresentation and by reason of mistake or incompetence to make an order. To support his contention counsel relied on the case of Oloko v Nitel Ltd & Anor (*2012) LPELR-19672(CA).

8.                 Counsel urged the court to grant the application based on misrepresentation and mistake of the applicant. According to counsel it will not be in accord with justice to punish a party because of his blunders. In support of this view counsel relied on the cases of BCE Consulting Engineering v NNPC (2003) LPELR-7206(CA) and Bank of Baroda v Iyalabami (2002) LPELR-743(SC), as punishing applicant because of mistake will defeat the end of justice.

9.                 Counsel also submitted that the law is that order absolute can be set aside if fresh facts become available which were not disclosed. On this counsel relied on the case of Unity Bank v Benedick (2021) LPELR-54549(CA). According to counsel as at the time of filing affidavit to show cause, the fact that the judgment sum was encumbered was not made available to us as this was not to the knowledge of every banker within the employment of the garnishee/applicant especially the staff that signed the affidavit to show cause. Counsel urged the court to grant the application for setting aside as judgment debtor’s fund was never in the custody as erroneously stated.

10.              Counsel also argued that funds disclosed in NICN/CA/27M/2026 is even a subject of appeal as deposed to in the affidavit in support. The law is that order absolute cannot be made against an account pending an appeal. In support of this contention counsel relied on the case of Delta State Government v Kay Que Investment Lts & Anor (2018) LPELR-45545(CA).

11.                In reaction to this application, the judgment creditors/respondents filed a 16 paragraphs affidavit sworn to by 5^th judgment creditor/respondent, debunking the averments of the garnishee applicant contained in the affidavit in support of the motion on notice insisting that there is no such encumbrance that currently exists on the funds belonging to the judgment debtor in the custody of the garnishee/applicant. There was nowhere in exhibit B3 judgment of court of appeal where lien was placed funds in the custody of the garnishee/applicant. There is no pending application for execution of the judgment subject matter of appeal before the Supreme Court nor is there any order levying execution on the funds in the custody of the garnishee/applicant.  

12.              The garnishee/applicant has not disclosed any new facts that came to their attention after the grant of the order absolute as all facts alleged by the garnishee/applicant exists were within its knowledge prior to the service of the order nisi.

13.               According to the judgment creditors, the garnishee applicant has in another proceeding in NICN/CA/13M/2026 disclosed that it has sufficient money of the judgment debtor. In the statement of account it shows that the sum of N62,588,882.92, is in the custody of the garnishee. The order nisi was subsequently made absolute against 3^rd garnishee Zenith Bank thereby freeing the funds attached available to be attached in this suit.

14.              In the written address filed along with the counter affidavit, counsel for the judgment creditors/respondents submitted a single issue for resolution to wit:

‘Whether the garnishee/applicant has made out a case for the grant of the reliefs sought’.

15.              Counsel relied on the averments contained in the counter affidavit. He also adopted the written address filed along with counter affidavit as his argument.

16.              In arguing the sole issue counsel refers to order 47 rule 22(1) of the rules of this court and submitted that this court has power to set aside its judgment order or decision. But the provision is not absolute as there are conditions under which this can be done. Counsel refers to order 47 rule 22(1)(c) provides that decision can be set aside based on mistake both parties.  The alleged mistake is not common to the parties but one unilaterally made by the applicant. From the facts it is a mistake arising from unilateral omission and not one common to both parties.

17.              Counsel also refers to case of Otu (supra) relied by the garnishee/applicant and submitted that the situation presently before the court does not qualify to an appropriate circumstance. As parties were given adequate opportunity to present their cases before grant of order absolute. The garnishee/applicant makes use of opportunity by checking their records and reported the status of the judgment debtor.

18.              According to counsel in the case of Unity Bank v Benedick (supra) also relied by the garnishee/applicant, the application to set aside was refused.  Counsel submitted the garnishee/applicant in this case has failed to furnish sufficient facts to the court. Counsel insisted that no mistake exist in this case to warrant setting a side order absolute.

19.              Counsel further submitted that the garnishee/applicant has not demonstrated that the account of the judgment debtor was on appeal.

COURT’S DECISION:

20.            I have carefully and painstakingly perused the motion on notice seeking for an order setting aside order absolute made by this court on 9/7/2026, the affidavit in support, the exhibits attached therein, the counter affidavit of the judgment creditors/respondents. I have equally considered the written addresses of counsel as well as the oral adumbration before the court.

21.              Where a garnishee bank seeks to set aside a garnishee order absolute on the ground of a mistake regarding the availability of funds, having previously affirmed their existence in an affidavit, the court's power to make such an order is circumscribed.

22.             In law a garnishee order absolute is a final order, and once made the court that made or issued it generally becomes functus officio and cannot set it aside in the same proceedings. This is because a garnishee order absolute represents an executed judgment and a completed act. The Supreme Court, in ZENITH BANK PLC v. JOHN & ORS (2015) LPELR-24315(SC), described a garnishee order absolute as "an executed judgment and being a completed act". This underscores the finality of such an order. Thus, once a garnishee order nisi becomes a garnishee order absolute, it crystallises into a final order of court, not an interlocutory one. See UBN Plc v. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654; Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163; Zenith Bank Plc v. John (2015) 7 NWLR (Pt. 1458) 393. Similarly, in C.B.N. v. Lidan Eng. Ltd. (2026) 12 NWLR (Pt. 2053) 35; (2026) LPELR-83062(SC), the apex court explains that garnishee proceedings empower the court to order a third party (the garnishee) to pay the judgment debt directly to the judgment creditor, signifying the conclusive nature of the order absolute.

23.             It is trite law that a court of law lacks the power to set aside its own garnishee order absolute in the same proceedings as by such order it has become functus officio. In OGUNGBEJE v. FBN LTD & ORS (2025) LPELR-82533(CA), it was unequivocally stated that "A garnishee order absolute is a final order on the merit that can only be set aside on appeal against it, and not by the Court that made it in the same proceedings in which the order was made". This means that once the order absolute has been made, the proper recourse for an aggrieved garnishee is to appeal the decision to a higher court, not to apply to the same court for a reversal, as the court that made the order cannot sit on appeal on its own order. This position was arrived at in the decision relied by counsel for the garnishee/applicant in his written address see Unity Bank v Benedick (2021) LPELR-54549(CA).

24.            The law is that during the period between when the order nisi and the order absolute are made, the matter would still be pending before the court. In other words, the proceedings would still be at the interlocutory stage. But once the order absolute is made, there would be nothing left before the court in the matter. The court has, at that stage, completely determined the matter between the parties as far as the proceedings are concerned. The court would be functus officio. There would then be nothing left to be determined by the court. See U.B.N. Plc v. Boney Marcus Ind. Ltd. (2005) 13 NWLR (Pt. 943) 654.

25.             Furthermore, the circumstances under which a garnishee order absolute can be set aside are very narrow. The Court of Appeal, in ZENITH BANK v. IGBOKWE & ANOR (2013) LPELR-21975(CA), reiterated that "the only reasons whereby an order absolute can be set aside is if there is evidence on record that the garnishee was not properly personally served with the garnishee order nisi to show cause. The only other reason is if in the consideration of the processes filed by the garnishee to show cause, the trial judge used wrong legal consideration to arrive at the decision to make the order absolute". In this case the garnishee/applicant has failed to demonstrate that it was not served in fact it cannot assert that as it filed affidavit to show cause which is evidence that it was served. There is also nothing in the affidavit to show that the court used wrong legal consideration in making order absolute.

26.            In the present case, the garnishee's application to set aside the order absolute is based on a claim of "mistake" regarding the availability of funds, despite having filed an affidavit confirming sufficient funds. This ground does not fall within the limited reasons enumerated in ZENITH BANK v. IGBOKWE & ANOR (2013) LPELR-21975(CA) or even in the cases cited by the garnishee/applicant in his written address. The order absolute was made based on the garnishee's own representation made in the affidavit to show cause which was voluntarily made and affirmed that funds were available, meaning that the court was on right footing when order absolute was made based on information supplied and made available to the court by the garnishee/applicant itself.

27.             The rules of court relied in making this application and order 47 rule(1)(c) are not helpful to the case of the claimant as the rules do not in any way authorize this court to reversed an order absolute made by it as in this case. 

28.            The garnishee/applicant also relied on appeal against a judgment of the Court of appeal to argue that order absolute cannot be granted in respect of funds on appeal. However, the garnishee/applicant has failed to supply facts to show that the funds in its custody are the funds that are directly linked with the pending appeal at the Supreme Court. There is also no evidence adduced before the court to show existence of an order respecting the funds in the custody of garnishee/applicant or any appeal on the said funds. 

29.            Given the established legal principles enunciated above, coupled with absence proof of conditions for setting aside of order absolute as a final court order, the garnishee/applicant has woefully failed in its bid to convinced the court of its entitlement to have the order absolute made on 9/7/2026, to be set aside. This court is functus officio regarding that specific order and cannot revisit it in these same proceedings. The garnishee's claim of a "mistake" after affirming the availability of funds in an affidavit does not constitute a valid ground for this court to set aside its own final order. The only option open to the garnishee/applicant is to appeal to Court of Appeal if it is dissatisfied with the order absolute.

30.             Furthermore, the claim that the judgment debtor was indebted to the garnishee applicant cannot assist as the issue of debt is known to the garnishee and deliberately failed and neglected to disclose it in the affidavit to show cause, the garnishee applicant must stick to its affidavit to show cause as there was nothing to indicate that the facts supplied were not the correct facts.

31.               In the circumstances and in view of the foregoing, I have no option than to dismiss this application for setting aside for being unmeritorious, vexatious and abuse of court process. The appropriate course of action for the garnishee, if it genuinely believes the order was wrongly made, would be to appeal the garnishee order absolute to the Court of Appeal.

32.             I award N1,000,000.00 (One Million Naira) cost against the garnishee/applicant in favour of the judgment creditors.

33.             Ruling is hereby entered accordingly.

 

 

Sanusi Kado,

Judge.

REPRESENTATION:

A. Morphy, Esq; for the garnishee applicant

Assam Assam, Esq; for the judgment creditors respondents.