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: JULY 25, 2024                                           

SUIT NO: /NICN/AWK/14A/2023

 

BETWEEN

1.      R.O. Okoye, Esq.

2.      Dr. Emmanuel C. Obiano

3.      Onuorah Lawrence

4.      Rose Okeke        

(For themselves and as representatives

of the 2015-2019 Group of Retired Health

Workers of Anambra State Local

Government System)                                                    -Judgment Creditors/Applicants

 

AND

1.      The Honourable Commissioner for Local

Government and Chieftaincy Matters/Chairman,

Joint Account and Allocation Committee (JAAC),

Anambra State.

2.      The Secretary, Joint Account and Allocation Committee

(JAAC), Anambra State

3.      Joint Account and Allocation Committee (JAAC),

Anambra State                                                   -Judgment Debtors/Respondents

 

AND

1.      Fidelity Bank Plc

2.      United Bank for Africa Plc                                           -           Garnishess

 

REPRESENTATION

Doris A. Udensi, for the Judgment Creditors/Applicants.

I.J. Oguejiofor and I.J Ugboaja for the Defendants/Judgment Debtors/Respondents

 

RULING

INTRODUCTION

1.      This Court on 17 May 2023 had delivered a consent judgment in favour of the Judgment Creditors/Applicants and the Defendants/Respondents in Suit No. NICN/AWK/33/2021. In the said consent judgment, and after considering the terms of settlement, especially with respect to arrears of salary shortfall, gratuity and pension of the Judgment Creditors/Applicants as ealier computed by the Local Government Staff Pension Board, and same was vetted and endorsed by the Auditor-General for Local Government.Samewas forwarded to 1^st 2^nd and 4^thDefendants/Respondents and the Court, by the provisions of Order 42 Rule 9 of NICN Rules, 2017 entered the terms of settlement as the judgment of the Court.

 

2.      On the 16 April 2024, the judgment creditors accordingly filed a motion ex-parte pursuant to Order 51 Rules 1 and 2 of the NICN Rules 2017 (which is in pari material with Part V section 83 (1) and (2) of the Sheriffs and Civil Process Act Cap. S6) LFN 2004, Order II Rule 10 and Order VIII Rule 3 of the Judgment (Enforcement) Rules, section 287 (3) of the 1999 Constitution and under the inherent jurisdiction of the Honourable Court.

 

3.      The Judgment Creditors/Applicants prayed for the following orders:

An order of attachment on the monies standing to the credit of the 3^rd judgment debtor in her account with the garnishee, namely Account number 5030090213 and other accounts with the garnishee.

An order directing the garnishee to appear before this court on the next adjourned date to show cause why he should not pay over to the judgment creditor/applicants the sum of all arrears of their financial entitlements being owed them by the judgment debtor.

An order directing the garnishee to pay the judgment creditors/applicants the sum of five hundred thousand naira (?500,000) being cost of this garnishee proceeding from the monies standing to the credit of the 3^rd judgment debtor in her account with the garnishee.

An order restraining the 1^st and 2^nd judgment debtors, either by themselves or through agents or any other person/s whosoever, from opening any other bank account for the 3^rd judgment debtor for the purpose of receiving of funds allocation from the (sic).

An order restraining the 1^st and 2^nd judgment debtors, either by themselves or through agents or any other person/s whosoever, from opening any other bank account for the 3^rd judgment debtor for the purpose of receiving of funds allocation from the Federation Account within the period the judgment creditors/applicants have not been completely paid all the financial entitlements being owed them by the judgment debtors as indicated in paragraph above.

An order directing the 1^st and 2^nd judgment debtors to submit to this Court on the next adjourned date the lists of retirement and post retirement financial entitlements as indicated in paragraph 2 above.

An order of the directing the garnishee to submit to this Court on the next date of adjournment, documentary evidence of the amount of monies standing to the credit of the 3^rd judgment debtor as at the time of issuance of order nisi on the garnishee.

Any other further order/s as this Court may deem fit to make in the circumstance of this matter.

 

4.      Satisfied that the ex-parte application had merit, this Court on 16 April 2024 granted the order nisi against Fidelity Bank Plc and United Bank for Africa (UBA) Plc as garnishees asking them to show cause at the next adjourned date vide an affidavit sworn to by a senior staff of the garnishee banks why the order nisi should not be made absolute. The garnishees on 14 May 2024 filed affidavits of cause. The Business Manager with United Bank for Africa Plc filed an affidavit of cause that met the terms of the order nisi. To the affidavit of cause of 14 May 2024, the judgment creditor filed his reaction affidaviton 2 May 2024.

 

5.      Reacting to the order nisi, the 1^st to 3^rd judgment debtors and the 1^st garnishee bank respectively filed processes that oppose the order nisi. It is the contention of the judgment debtors that counsel who represented the respondents in Suit No. NICN/AWK/33/2021 when the consent judgment was given did not have the authority of the judgment debtors to represent them in the suit; that the judgment debtors were not aware of the terms of settlement before it was made a judgment of the Court; that the judgment debtors are not owing the judgment creditors the sum of ?884,961,580.47 as they alleged; that it is not the Attorney General that will pay the judgment creditors, but the judgment debtors. That there was a huge misrepresentation before the terms of settlement in Suit No. NICN/AWK/33/2021 was (sic) agreed upon and eventually filed as judgment of this Court; that the judgment creditors agreed the terms of settlement because they were led to believe that the counsel representing the judgment debtors was speaking for them; that the judgment creditors believe that the judgment debtors had approved the terms of settlement in Suit No. NICN/AWK/33/2021, whereas they had not. That as a result of the above, the judgment debtors together with the Attorney General had filed a suit in Suit No. NICN/AWK/15/2023 seeking to set aside the consent judgment as it was not obtained in line with the provisions of the law.

 

6.      It is the contention of the judgment debtors that the judgment debt has not been determined as it was part of the judgment in NICN/AWK/33/2021.See Nigerian Breweries Plc v. Dumuyi (2016) 8 NWLR (Pt. 1515) pg. 536. That the garnishee proceeding is premature; that it will be unjust and perverse for a garnishee to be made to pay the judgment creditor an amount exceeding the actual credit (sic) of the judgment debtor. See CBN v. Dantrans (Nig) Ltd &ors (2018) LPELR-46678 (CA). That the law is that the person whose many with garnishee is being attached has a right to stay the attachment of his funds by garnishee order absolute pending the conclusion of any legal process to challenge the decision of the garnishee proceedings. See Gwede v. Delta State House of Assembly & anor (2019) 8 NWLR Pt. 1673. That in the instant case, the judgment debtors filed Suit No. NICN/AWK/15/2023 are seeking to set aside the consent judgment for reasons already adduced; that in the light of suit No. NICN/AWK/15/2023, which is yet to be determined, garnishee proceedings cannot be commenced, and accordingly dismiss this application. See Purification Tech Nigeria Ltd v. A.G Lagos State (2014) LPELR-7424 (CA) 16-19, paras F-A. That in the instant case, the consent judgment in Suit No. NICN/AWK/33/2021 was obtained without compliance with the provisions of the law; that this is why Suit No. NICN/AWK/15/2023 was instituted to set the judgment aside; that the failure of counsel who represented the applicants in Suit No. NICN/AWK/33/2021 to strictly adhere and comply with Order 42 Rule 4, 6(2) and (3), Order 47(9) of NICN Rules 2017 renders the terms of settlement and consent judgment a nullity.

 

7.      The learned state counsel to the respondent cited Order 47 rule 9 of NICN 2017 which states that: In any cause or matter in which the partiesare represented by legal practitioners, no order for entering judgment shall be made by consent unless the terms of settlement are signed by both parties and their counsel “(Emphasis state counsel’s) He disingenuously omitted the proviso in Order 47 Rule 9 which states that: “Provided that where the counsel refuses or fails to sign the terms of settlement, the parties may sign the agreement and that may be accepted by the Court.”

 

8.      After stating the details of 1^st garnishee’s database and the account details, the Business Manager prayed the Court to discharge the 1^st garnishee. The 2^nd garnishee did not respond/show cause.

 

9.      In the light of all the submissions rendered above, the judgment debtors urged the Court to dismiss this application as it lacks merit.

 

THE SUBMISSIONS OF THE JUDGMENT CREDITORS

10. The judgment creditors/respondents, in opposition to the affidavit and written address in support of affidavit to show cause filed a 8- paragraphs counter-affidavit with an accompanying written address. They raised two issues for determination i.e. whether this court has the jurisdiction to hear the judgment debtors’ Suit No. NICN/AWK/15/2023; and whether the issues raised by the judgment debtors in their Suit No NICN/AWK/15/2023 make any sense. They answered in the negative.

 

11. To the judgment creditors, it is submitted and argued that this court lacks jurisdiction to hear the judgment debtors Suit No. NICN/AWK/15/2023 because the suit is incompetent before this court on grounds that the judgment debtors do not have the locus standi to institute the suit; that the suit is statute barred and that the court has become functus officio in respect of the judgment it delivered. On locus standi, it is submitted by the applicants/judgment creditors that the question whether a plaintiff has locus standi to bring an action in the first place does not depend on the success or the merit of the case, but on whether the plaintiff has legal right in the subject matter of the dispute to enable him institute the action; that a person without locus standi instituting an action in Court makes himself a busy body and a meddlesome interloper; and the Court lacks jurisdiction to hear the suit. That the suit becomes incompetent before the Court and the only option being for the Court to dismiss the suit for lack of jurisdiction. See Liba v. Koko (2017) 11 NWLR (Pt. 1575) 335 at 355-356, paras H-C and Adeleke v. CBN (2017) 11 NWLR (Pt. 1575) 1 at 30 para C. That in AG Fed v. AG Lagos State (2017) 8 NWLR (Pt. 1566) 20 at 55 para D, the Supreme Court held that when a party’s locus standi is in issue, the question is whether the person whose standing is in issue is a proper party to request an adjudication of a particular issue and not whether the issue justifiable (sic).

 

12. That in the instant case where the judgment debtors in their Suit No. NICN/AWK/15/2023 are applying for the consent judgment of the Court to be set aside, and the said judgment borders solely on paying the judgment creditors who are Local Government pensioners, for the judgment debtors to have the locus standi to institute an action in Court in respect of the judgment, they must show their legal right concerning the subject matter of the judgment, that is, payment of the judgment creditors who are Local Government pensioners. That in other words, they must show that the payment is one of their statutory functions; otherwise, they have no locus standi to file their suit, and in doing so they make themselves busy bodies and meddlesome interlopers; that their suit becomes incompetent for being filed by persons who do not have the locus standi to do the filing, and thus liable to be dismissed by the Court for lack of jurisdiction. To the judgment creditors/applicants, it is the statutory duty of the Anambra State Local Government Staff Pension Board and the Joint Account and Allocation Committee have the sole duty statutorily of paying retired Local Government employees; that any government body other than the Pension Board that takes up the duty of payment of retired Local Government employees will be acting ultra vires and shall be ordered by this court to hands off the duty.

 

13. Regarding the issue of the judgment debtors in Suit No. NICN/AWK/15/2023 being statute barred, the judgment creditors/applicants submitted that it is a settled principle of law that where a statute prescribed a period within which an action must be commenced, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period; that the only option left for the court is to dismiss the matter for lack of jurisdiction. See Ibrahim v. JSC Kaduna State (1998) 12 SC 20; Egbe v. Alhaji (1990) 3 SC (Pt. 1) 63 and Kasandubu v. Ultimate Petroleum Ltd (2008) 7 NWLR (Pt. 1086) 274. That in the instant case, the judgment debtors’ Suit No. NICN/AWK/15/2023 in which they are seeking for a setting aside of the consent judgment of this Court was filed on 5 July 2023; that Order 38 Rule 24 (1) and (2) of the National Industrial Court of Nigeria (NICN) (Civil Procedure) Rules, 2017 provides a situation where any of the parties in a suit makes an application in respect of an order issued by the court, such an application shall be made within 14 days of the date of the order. “(Emphasis Supplied).

 

14. That the consent judgment order of this Court which the judgment debtors are applying to be set aside was issued on 17 May 2023, while their application for a setting aside of the order was filed 49 days later on 5 July 2023 instead of the 14 days period provided in the statutory provision cited above; that their said suit is statute barred and liable to be dismissed by the Court for lack of jurisdiction. That it is apposite that the word “shall” was used in directing that the application for a setting aside of an order of the Court should be made within 14 days; that the use of the word “shall” means that what is stated is not discretional but mandatory. See Diokpa Francis Onochie &ors v. Ferguson Odogwu & ors (2006) All FWLR (Pt. 317) 544 and Mr. Emmanuel Imon Oken & 2 ors v. Chief Kenneth Bassey Ubi & ors (2006) All FWLR (Pt. 328) 717. That the respondents’ suit is bound to be dismissed for lack of jurisdiction.

 

15. Regarding the issue of the Court being functus officio to hear the judgment debtors’ Suit No. NICN/AWK/15/2023, the applicants/judgment creditors argued that the law is settled that once a judgment is delivered, the Court becomes functus officio, that is, it has no power whatsoever to say or do anything in respect of the decision already made. See Buhari v. INEC &ors (2008) LPELR-814 SC and CBN v. Eze & ors (2021) LPELR-55554 (CA). That accordingly, this Court cannot hear the judgment debtors’ Suit No. NICN/AWK/15/2023.

 

16. Issue two is whether the issues raised by the judgment debtors in their Suit No. NICN/AWK/15/2023 make any sense. To the judgment creditors/applicants, the fact that this Court lacks the jurisdiction to hear the judgment debtorsSuit No. NICN/AWK/15/2023 as it is incompetent for reasons given in paragraphs 4.01 of judgment creditors/applicants’ written address makes it unnecessary to respond to the issues they raised in the suit. For record purposes, the judgment creditors/applicants elected to address the issues and lay them to rest.

 

17. On the issue of the argument of the judgment debtors that the amount of  money being owed the judgment creditors was not specified in the consent judgment order, it is submitted by the judgment creditors/applicants that it was because the 1^st judgment debtor is in possession of the three payment vouchers containing the amount; that during negotiations for the out-of-court settlement, all the appeals by the judgment creditors to the 1^st judgment debtor to provide copies of the three payment vouchers to them fell on deaf ears; that after the Court had ordered the judgment creditor to put the judgment debtors on notice which led to the filing of their Suit No NICN/AWK/14A/2023, the judgment creditors providentially got possession of the three payment vouchers annexed as Exhibit CW1, CW2 and CW3 in their suit; that they were thus, able to specify in their suit the amount they are being owed which is ?884,961,580.47 (Eight Hundred and Eighty Four Million, Nine Hundred and Sixty One Thousand , Five Hundred and Eighty Naira, Forty Seven Kobo).

 

18. That the judgment debtors who have been served the judgment creditors’ said Suit No. NICN/AWK/14A/2023 as ordered by the court have seen the judgment debt therein stated with documentary evidence (the payment vouchers); that they have not, and can never deny the amount stated because it is the correct judgment debt the judgment creditors are being owed, more so as the 1^st judgment debtor is in possession of the three payment vouchers from where the amount was derived.

 

19. That the period over which the judgment debt accumulated was clearly stated in the consent judgment; that the judgment debtors were aware of the amount. Since the payment vouchers containing the amount is in the possession of the 1^st judgment debtor, only that he bluntly refused to make the payment vouchers available to the judgment creditors as at the time of negotiations of out-of-court settlement, resulting in the amount being owed the judgment creditors not being specified in the consent judgment. That the amount has been known and specified in the judgment creditors’ Suit No. NICN/AWK/14A/2023 filed and served on the judgment debtors, which they have not denied and will never deny. That the argument of the judgment debtors that the amount of the judgment debt (which they are aware of) was not specified in the consent judgment and therefore that the judgment should set aside is a vain attempt at technicality, as the era of technicality is forever gone. See Dapinlong v. Dariye (2007) 8 NWLR (Pt. 1036) 332.

 

20. To the judgment creditors, the claim by the judgment debtors that they were not carried along in the Court sessions and the Terms of Settlement resulting in the consent judgment is a blatant lie; that the truth of the matter is that they were fully carried along in all Court sessions as well as the negotiations that resulted in the drafting and signing of the terms of settlement upon which the consent judgment was predicated as in paragraph 4c of the judgment creditors/applicants’ counter affidavit. That as pointed out in that paragraph (4c), the judgment debtors themselves admitted on oath that they were fully carried along in the Court sessions and the terms of settlement resulting in the judgment when they stated in paragraph 4 of their filed court process (annexed as Exhibit e) that “the consent judgment entered in this case is well known to the respondents…” That by this, they have acknowledged that they are fully aware of all Court proceedings and participated in all negotiations that resulted in the drafting and signing of the Terms of Settlement adopted by counsel to both parties and subsequently entered as the consent judgment of the Court. The judgment creditors/applicants prayed the Court to so hold.

 

21. The judgment creditors/applicants continued that the claim by the judgment debtors that it was with the knowledge and consent of the Attorney General and Commissioner for Justice that they filed Suit No. NICN/AWK/15/2023 is false; that it is a cardinal principle of law that “he who asserts must prove” see section 131 of the evidence Act 2011; Reptico SA Geneva v. Afri-Bank Nig. Plc (2013) LPELR-20662 (SC) and Elias v. Omo-Barre (1982) 5 SC 2. That accordingly, the judgment debtors have the responsibility of proving their claim by bringing documentary evidence signed by the Attorney General that she consented to the filing of the suit, or in the alternative the Attorney General herself appearing in Court to validate the claim.

 

22. That assuming, but not conceding that the Attorney General gave consent to the filing of the suit, the fact that she initiated, approved, sealed and signed the Terms of Settlement that was adopted and entered as the consent judgment of the court estops her from consenting to any filed court process seeking a setting aside of the same consent judgment, for it is against the principle of equity to approbate and reprobate on one issue. That in Ajuwon & ors v. Governor of Oyo State &ors (2021) LPELR-55339 (SC) per Ejembi Eko JSC, the Apex Court held thus: “consistency is the rule of the game. A party is not allowed to approbate and reprobate on one issue.”

 

23. That the reliance of the judgment debtors’ counsel on Order 47 Rules 9, 22 and Order 42 Rules 3, 4, 6 of the NICN Rules, 2017 in his argument for setting aside of the consent judgment of this Court dated 17 May 2023 in Suit No. NICN/AWK/33/2021 is of no moment and goes to no issue, as shall soon be seen. That the case of Purification Tech. Nigeria Ltd v. AG Lags State (2014) LPELR-7424 (CA) 16-19 paras F-A cited by counsel refers to a pronouncement on an appeal matter and cannot be cite in a situation where one applying to a Court to set aside its own judgment as in the instant case; that no Court will pronounce its judgment a “nullity”. That Order 47 (22) of the NICN Rules, 2017 which listed conditions under which a Court can correct rescind or vary its order or ruling is not applicable in the instant case. That in the hearing of the substantive Suit No. NICN/AWK/33/2021 up to delivery of consent judgment, the judgment debtors who are Government Agents were lawfully represented by a Government counsel delegated to that effect by the Attorney General who is the Chief Law Officer of the State.

 

24. To the judgment creditors/applicants, the condition listed in Rule 9 as to the parties signing the Terms of Settlement was fulfilled in the instant case where the Attorney General signed the Terms of Settlement, and the judgment debtors (who are arguing that they did not sign the Terms of Settlement) are “Government Agents” sued in their capacity as Government Agents; and the source of money to be paid the judgment creditors is Government treasury. That it is a trite law that the Attorney General as the “Chief Law Officer” of the State “represents”, “speaks” and “signs” document on behalf of Government or any of the Agents in a matter in Court in which they are parties as in the instant case; that accordingly it amounts to rascality and coup de tat against the office of the Honourable Attorney General of the State for the judgment debtors who are Government Agents to apply for a setting aside of a Consent Judgment because it was the Attorney General that signed the Terms of Settlement instead of themselves. That this is a shocking, reckless and unprecedented application that no Court of justice will grant. And the judgment creditors/applicants prayed the Court to so hold.

 

25. In conclusion, the judgment creditors/applicants submitted that having regards to all they have so far presented, it is their humble submission that the judgmentdebtors’ opposition to the judgment creditors Suit No. NICN/AWK/14A/2023 lacks merit; and they prayed and urged the Court to so hold, and accordingly grant all the reliefs being sought by the judgment creditors in the said suit.

 

26. The 1^st-3^rd judgment debtors/respondents did not file any reply on points of law.

 

COURT’S DECISION

27. I have given due consideration to all the processes and submissions of the parties. The 1^st-3^rd judgment debtors’ response to show cause as ordered by the Court stated that the counsel who represented the respondents in Suit No. NICN/AWK/33/2021 when the consent judgment was given did not have the authority of the judgment debtors to represent them in the suit; that Counsel who was from the Chambers of the Attorney General did not carry the judgment debtors along in handling the suit, leading to obtaining the consent judgment; that it is the practice that Counsel from the Chambers of the Attorney General has to obtain the consent, authority and facts from the judgment debtors before representing them in any suit, and also obtain their approval before taking any crucial decision such as entering into a consent judgment.  That as a result, the judgment debtors together with the Attorney General filed a suit in Suit No. NICN/AWK/15/2023 seeking to set aside the consent judgment as it was not obtained in line with the provisions of the law.

 

28. The Counsel to the Judgment Creditors/Applicants on the other hand maintained that the Judgment Creditors/Applicants had ealier sued the judgment debtors in Suit No. NICN/AWK/33/2023 which was heard and determined by this Court with a consent Judgment given in favour of the judgment Creditors; that in the said judgment delivered on the 17 May 2023, the Judgment Debtors were ordered to pay the judgment creditors their pre-retirement and post-retirement financial benefits in four (4) installments staring from the month of May, 2023 to 31 August 2023 without fail.  That they have not started making any payment at all, one year after the order was issued; that they are not willing to make any payment; that they have wickedly refused to pay them even after the Court order.

 

29. The law has long been settled that a consent judgment or order made by a Court to give effect to the compromise of a legal claim by the parties may be set aside, not only on the ground of fraud, but for any other reason which would afford a good ground for setting aside the agreement on which the judgment or order is based, for example, on the ground of a common mistake, fraudulent misrepresentation or misconception.  This means a consent judgment or order of Court may be set aside if the conditions for setting aside are met by a party applying for setting aside.  An order, be it by consent or otherwise, which is a nullity, is something which the person so affected thereby is entitled to have it set aside ex debito justitiae.  The Court in its inherent jurisdiction has definite jurisdiction or power to set aside its own order or decision made without jurisdiction if such order or decision is in fact a nullity and an appeal in such circumstance cannot be said to be necessary.  It can thus be said that outside the appellate procedure, a judgment or order can be set aside if it is a nullity or where a Court was misled into giving the judgment by some mistake, believing that the parties consented to it being given, whereas, in fact they did not.  See Ojiako & ors v. Onwuma Ogueze & ors (1962) 1 All NLR 58 and Ekerete v. Eke -6 NLR 118.

 

30. In Abel Woluchem v. Dr Charles Wokoma (1974) 3 SC 153, the Apex Court held per Ibekwe, JSC thus:

           The rule is that actions may be settled by consent during the trial, usually, such settlement is a compromise and, in order to have binding effect on the parties, it is imperative that it should have the blessing of the Court.  Settlement between the parties may be described as a contract whereby new rights are created between them in substitution for, and in consideration of, the abandonment of the claim or claims pending before the Court.  When the Court moves and takes action as agreed upon by the parties, it becomes a consent judgment.

      See also the cases of Afegbai v. Attorney Genearl Edo State &anor (2001) LPELR – 193 (SC) p 37, paras D-E; Talabi v. Adeseye (1972) 8-9 SC 20; Akanbi v. Durosaro (1998) 12 NWLR (pt. 577) 284 and Enigbokan v. Baruwa (1998) 8 NWLR (pt. 560) 96.

 

31. The complaint of the claimants in Suit No. NICN/AWK/33/2021 between R.O. Okoye Esq & 3 others v. The Honourable Commissioner for Local Government and Chieftaincy Matters/Chairman,Joint Account and Allocation Committee (JAAC), Anambra State & 4 others dated 11^th November 2021 was filed the same date.  The Attorney General and Commissioner for Justice, Ministry of Justice, Awka, Anambra State is the 5^th defendant in this suit.  On 28 January 2022 C.G. Okonkwo- Okom Esquire, Assistant Director, Counsel for the defendants, Attorney General’s Chambers, Ministry of Justice Awka, Anambra State filed Memorandum of Appearance pursuant to Order 9 Rule 1 of NICN Rules, 2017.  Out of the eight (8) sittings of the Court in this suit, Counsel to defendants attended Court proceedings on 6^th April 2022, 6^th December 2022, 15 February 2023 and 12 May 2023.  On 18 October 2022. O.C. Aghaduno Esquire, Senior State Counsel in the Ministry of Justice, Awka, Anambra State; and on 11^th February 2022 and 16 June 2022, hearing notices were duly issued and served on Counsel to defendants who called to say she was otherwise officially engaged.

 

32. Undoubtedly, the filing of a memorandum of appearance by a defendant is a proof that the originating process had been served on him or her.  The presumption is that he/her has entered appearance in defence of the action against him/her.  In Stabilini Visiononi Ltd v. Ejike (2002) FWLR (pt. 84) 44 CA, the appellant’s contention was that it had not been served with the originating process, and that therefore the judgment entered against it was a nullity.  Musdapher, JCA (as he then was) considered the events which culminated in the judgment, and rejected the submission of the appellant.  His Lordship observed inter alia:

“Before the adjourned aforesaid date, the appellant filed a memorandum of appearance under Order 13 Rule 1 of the High Court (Civil Procedure) Rules. The memorandum of appearance was filed by the appellant on 24/2/2000… When the matter was mentioned in Court on 9/3/2000, learned Counsel appearing for the appellant “under protest” and the appellant’s Counsel asked for a short adjournment.  What he said to the Court is very revealing.  He said: “Negotiation is going on.  We ask for a short adjournment.”  And the matter was adjourned to 28/3/2000. The sum total of these in my view is sufficient to satisfy the trial Judge that the appellant was served with the originating processes. The fact that the appellant filed on 24/2/2000 clearly indicated that the appellant was served with the originating processes…”

 

33. In general, the presumption of regularity presumes that no official or person acting under an oath of office will do anything contrary to their official duty, or omit anything which their official duty requires to be done. In accord with the presumption of regularity, the acts of a public officer, which presuppose the existence of other acts or conditions to make them legally operative, are presumptive proofs of the performance of the applicable acts or conditions. A presumption of regularity attaches to judicial proceedings.  Substantial evidence is required to overcome a presumption of regularity.  See Knox County v. Ninth Nat. Bank 147 US 91, 97 (1893); R.H. Stearns Co. v. United States, 291 US 54, 63 (1934); American Railway Express Co. v. Lindenburg, 260 US 584, 589 (1923).  Subdivision (2) (b) of Rule 3.07 on Presumption of Regularity which states that “a public official is presumed to act honestly in good faith,” is derived from cases that include Anheuser-Busch, Inc. v. Abrams, 71 NY2d 327, 332 (1988) “the Attorney General enjoys a presumption that he is acting in good faith.”  See Matter of Magnotta v. Gerlach (301) NY 143, 149 (1950).  See Ogboru v. Uduaghan (2011) 2 NWLR 538.  See also Obianwuna Ogbuanyinya & ors v. Obi Okudo & ors SC 111/1988, the judgment of which was delivered on 6 July 1990; Okafor v. Nweke (2007) 10 NWLR (Pt. 1043) 521.  Aside the ipse dixit of one Anthony Onyekomelu, who is an Officer in the Ministry of Local Government, Chieftaincy and Community Affairs, and does not work in the office of the 5^th defendant in Suit No. NICN/AWK/33/2021, there is no iota of evidence that Counsel who represented the Respondents in Suit No. NICN/AWK/33/2021 did not have the authority of the judgment debtors to represent them in the suit.  And where were the Respondents in Suit No. NICN/AWK/33/2021 when the Attorney on the record filed her memorandum of appearance and appeared severally in Court up to the adoption of terms of settlement and delivery of judgment in the Suit? The judgment debtors/respondents, and I dare say, State Counsel in the office of the Secretary to the State Government cannot approbate and reprobate or challenge representation of Counsel to the Judgment Debtors/Respondents in Suit No. NICN/AWK/33/2021.  I so find.  I see no merit in the representations of the Judgment Debtors/Respondents.  I so rule.

 

34. It is submitted by the Judgment Debtors that, regarding the instant case, the Judgment Debtors filed Suit No. NICN/AWK/15/2023 seeking to set aside the consent judgment for reasons already adduced; that the Court is thus urged to hold that in the light of Suit No NICN/AWK/15/2023, which is yet to be determined, garnishee proceedings cannot be commenced, and accordingly dismiss this application.  In the case cited and just like an appeal,section 47 of the National Industrial Court (NIC) Act 2006 provides that:

47. “Where permitted by this Act and any other Act of the National Assembly, an appeal to the Court of Appeal from the decision of the Court shall not operate as a stay of execution but the Court may order a stay of execution either conditionally or upon the performance of such conditions as may be imposed in accordance with the Rules of Court.”

      The Court shall accordingly take appropriate action in compliance with NIC Act 2006, NICN Rules, 2017 and the law as determined by authorities.

35. The principle of Res Judicata means “a thing decided” in Latin.  What it explains is that once a res is judicata, it shall not be adjudged again.  Primarily, it applies as between past litigation and future litigation.  When a matter-whether on question of fact or a question of law has been decided between two parties in one suit or proceedings; and the decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed; or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the same matter again.  The affidavit evidence of Anthony Onyekomelu, an officer in the Ministry of Local Government, Chieftaincy and Community Affairs and the argument of Counsel representing the judgment debtors in their written address clearly indicates that they are still canvassing issues/matters determined in Suit No. NICN/AWK/33/2021.  In the case of S.O. Ntuks & ors v. Nigeria Ports Authority SC. 190/2003, the judgment of which was delivered on 11 May 2007, the Apex Court held Ikechi Franco Ogbuagu, JSC that:

            “The principle of res judicata applies where a final judicial decision has been pronounced by a judicial tribunal/Court, having competent jurisdiction over the cause or matter in litigation and over the parties thereto, disposes once and for all, of the matters decided so that they cannot afterwards, be raised for re-litigation between the same parties or their privies.  See ASU v. Ikemba (1991) 4 SCNJ 56…  In order to satisfy such a plea of res judicata, the parties or their privies as the case may be, are the same in the present case as the previous case; the issues and subject-matter, are the same in the previous case as in the present case; the adjudication in the previous case, must have been given by a Court of competent jurisdiction and the previous decision, must have finally, decided the issues between the parties.  See the cases of Fadiora v. Gbadebo (1978) 3 SC 219; (1978) 1 LRN 106; Ekpese v. Osito (1978) 6-7 SC 187; Ezenwa v. Kareem (1990) 5 SCNJ 165 @ 167-170…”

      See also Ogunlana & ors v. Fasanya & ors LPELR (2019) CA/L/110/2016; AG Nasarawa State v. AG Plateau State (2012) LPELR – 9730 (SC); Dakolo &ors v. Rewane – Dakolo &ors (2011) LPELR -915 (SC); S.O. Utuks & ors v. Nigerian Ports Authority (2005) LPELR – 3440 (SC); Ikotun v. Onyeanmi&anor (2008) LPELR – 1485 (SC).

 

36. I do not, therefore, see any merit in the arguments/submissions of the Judgment Debtors.  They lack merit and so are hereby dismissed.  I so rule. The reliefs sought by the judgment creditors in Suit No. NICN/AWK/14A/2023 are accordingly granted as prayed. I so order.

 

Decision of the Court on whether to make the Garnishee Order Nisi Absolute

37. I now proceed to the question whether this Court can make absolute the garnishee order nisi it made on 14 May, 2024 given that the 1^st to 3^rd judgment debtors’ submissions have been dismissed for want of merit.  Incidentally, the 1^stgarnishee in its affidavit of cause merely stated that the Order Nisi made in this Suit on the 16^th April 2024 was served on the 1^st Garnishee; that the 1^st Garnishee has checked her database and confirmed the existence of account number 1026432701 in the name of Anambra State JAAC Main Treasury Single Account; that the said account has a credit balance of fifteen billion, two  hundred and seventy seven million, one hundred and forty seven thousand, six hundred and forty five naira, eighty five kobo (N15,277,147,645.85) between 24 April 2024 to 3 May 2024.

 

38. In the three cases of Polaris Bank v. Gumau & ors (2019) LPELR – 47066 (CA) 1 at 34 – 37, Sterling Bank Plc v. 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).

 

39. Having regard to the above firmly established principles, it is pertinent to note that the consent judgment upon which the garnishee proceedings are hinged is the same judgment the judgment debtors seek to set aside in Suit No. NICN/AWK/14A/2023.  It must be stressed and of course borne in mind that Suit No. NICN/AWK/33/2021 was never appealed by the judgment debtors to the Court of Appeal.  The judgment debtors have not challenged the jurisdiction or the competency of the court or the trial judge, to entertain and determine the case. The parties in Suit No. NICN/AWK/33/2021 and Suit No. NICN/AWK/15/2023 are the same. In effect, all the ingredients for the defence of res judicata to succeed are present in Suit No. NICN/AWK/33/2021. The judgment debtors who filed Suit No. NICN/AWK/15/2023 are bound by Suit No NICN/AWK/22/2021. I so find and hold. Filing Suit No. NICN/AWK/15/2023, I maintain, is an abuse of the process of the Court. The judgment in Suit No. NICN/AWK/33/2021 subsists. I so hold. Suit No. NICN/AWK/15/2023 which did not even include C.G. Okonkwo Okom, Assistant Director, Ministry of Justice, Anambra State as a defendant/respondent is accordingly dismissed. I so hold. The next adjourned date in Suit No. NICN/AWK/15/2023 is, in the effect of this judgment, accordingly vacated. I so order.

 

40.  By NNPC v. Clifco Nigeria Ltd (2011) LPELR-2022 (SC):

The award of cost is entirely at the discretion of the court; costs follow the event in litigation. It follows that a successful party is entitled to cost unless there are special reasons why he should be deprived of his entitlement. In making an award of costs, the Court must act judiciously and judicially. That is to say with correct and convincing reasons.

See alsoAnyaegbunam v. Osaka (1993) 5 NWLR (Pt. 294) 449 and Obayagbona v. Obazee (1972) 5 SC 247. The Judgment Creditors/Applicants have succeeded in terms of reliefs sought and so are entitled to some cost. And I so hold.

 

41.  I find the application of the judgment creditors for the order nisi of 14 May 2024 to be made absolute. I hereby grant it and so make the following orders:

a)     The garnishee order nisi of 14 May 2024 made by this Court in this matter in respect of the sum of Eight Hundred and Eighty-Four Million, Nine Hundred and Sixty-One Thousand, Five Hundred and Eighty Naira,Forty-Seven Kobo (?884,961,580.47k) to be paid by the garnishee to the judgment creditors is hereby made absolute.

b)    The garnishee shall forthwith pay to the judgment creditors/applicants the said sum of Eight Hundred and Eighty-Four Million, Nine Hundred and Sixty-One Thousand, Five Hundred and Eighty Naira,Forty-Seven Kobo (?884,961,580.47k) being the judgment sum in satisfaction of the judgment of this Court delivered in favour of the Judgment Creditors/Applicants.

c)     The garnishee shall forthwith pay to the Judgment Creditors/Applicants the sum of five million naira (?5,000,000.00) being the cost of this action.

 

42.  Judgment is entered accordingly. I make no order as to cost.

 

 

Hon. Justice J.I. Targema, PhD