Captain Benedict Otusoji v Central Bank Of Nigeria

• Judge: Hon. Justice B. B. Kanyip
• Judgment Date: 05 October 2021
• Respondent: Central Bank Of Nigeria
• Appellant: Captain Benedict Otusoji
• Docket Number: NICN/ABJ/304M/2020
• Counsel: Ayotunde Ogunleye, with Oluwafaseye Afolabi, for the judgment creditor. O. C. Ali, with Caleb Echoga for the 1st - 3rd judgment debtors.
• Court: National Industrial Court (Nigeria)

INTRODUCTION

1. This Court on 27 May 2020 had delivered judgment in favor of the present judgment creditor in Suit No. NICN/ABJ/125/2018. In the said judgment, after declaring that the compulsory retirement of the judgment creditor by the 1st defendant is illegal, null and void, the 1st defendant was ordered to pay to the judgment creditor within 30 days of the judgment the sum of N75 Million only as general damages. The judgment creditor was not so paid, hence the instant garnishee proceeding, which, on the authority of Heritage Bank Ltd v. Inyerlagos 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 27 October 2020, the judgment creditor accordingly filed a motion ex parte pursuant to section 83(1) and (2) of the Sheriffs and Civil Processes Act Cap S6 LFN 2004, Order II Rule 10, and Order VIII Rule 3 of the Judgment (Enforcement) Rules, Order 51 of the National Industrial Court of Nigeria (Civil Procedure) Rules 2017, Section 287(3) of the 1999 Constitution and under the inherent powers of this Court.

3. The judgment creditor prayed for the following orders:
(1) A garnishee order nisi of this Honourable Court attaching the monies due to or lying to the credit of the 1st judgment debtor/respondent in the accounts of the garnishee, for the satisfaction of the sum of Seventy-Five Million Naira (75,000,000.00) only judgment debt due from the 1st judgment debtor/respondent to the judgment creditor/applicant; being an award of general damages which the National industrial Court of Nigeria, coram Hon. Justice B. B. Kanyip, Ph.D; the President of the National industrial Court of Nigeria ordered in favour of the judgment creditor on 27th May, 2020 in Suit No: NICN/ABJ/125/2018; Captain Benedict Otusoji Akanni (Rtd.) v. The Nigerian Army &. 3 ors.
(2) A garnishee order nisi of this Honourable Court attaching the monies due to or lying to the credit of the 1st judgment Debtor/Respondent in the accounts of the garnishee, for the satisfaction of the sum of Seven Million, Five Hundred Thousand Naira (N7,500,000.00) only judgment debt due from the 1st judgment debtor/respondent to the judgment creditor/applicant, being a simple interest rate of 10% per annum for the first year on the awarded general damages of Seventy-Five Million Naira (N75,000,000.00) in Suit No: NICN/ABJ/125/2018; Captain Benedict Otusoji Akanni (Rtd.) v. The Nigerian Army & 3 ors, which is for the failure of the 1st judgment debtor/respondent to liquidate the judgment sum of Seventy-Five Million Naira (N75,000,000.00) within 30 days from 27th May, 2020 when the judgment was delivered by the Honourable Court.
(3) An order of this Honourable Court that the garnishee appear before this Honourable Court on a named date to show cause why the Order should not be made absolute upon them for the payment of the total sum of Eighty-Two Million, Five Hundred Thousand Naira only (N82,500,000.00) to the judgment creditor/applicant, being the debt due, owed or accruing from the garnishee to the 1st judgment debtor/respondent or so much thereof as will satisfy the sum of Seventy-Five Million Naira (N75,000,000.00) only and Seven Million, Five Hundred Thousand Naira (N75,000,000.00), being the outstanding general damages/judgment debt and the simple interest rate of 10% per annum for the first year on the awarded general damages due under the judgment entered for the judgment creditor/applicant on the 27th May, 2020 in Suit No: NICN/ABJ /125/2018; Captain Benedict Otusoji Akanni (Rtd.) v. The Nigerian Army & 3 ors.
(4) An order of this Honourable Court consequent upon the above that the garnishee pay to the judgment creditor/applicant’s Account No: 6567231014 with Account Name: Akanni Benedict Otusoji which is domiciled with First City Monument Bank (FCMB), such money in the account of the 1st judgment debtor/respondent or so much thereof as will satisfy the debt due under the judgment debt with interest accrued thereof.
(5) And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.

4. Satisfied that the ex parte application had merit, this Court on 2 December 2020 granted the order nisi against the Central Bank of Nigeria (CBN) as the garnishee asking it to at the next adjourned date show cause vide an affidavit sworn to by a senior staff of the garnishee bank why the order nisi should not be made absolute. The garnishee on 7 January 2021 filed an affidavit of cause, which the Court adjudged incompetent, and hence struck it out, as it did not keep to the terms of the order nisi. Another affidavit of cause filed on 15 February 2021 was equally struck out. It was on 5 March 2021, that the garnishee filed an affidavit of cause that met the terms of the order nisi. To the affidavit of cause of 5 March 2021, the judgment creditor filed on 21 June 2021 his reaction affidavit.

5. Reacting to the order nisi, the 1st to 3rd judgment debtors and the garnishee bank respectively filed processes that oppose the order nisi. In both processes, they asked that the order nisi be set aside. The 1st to 3rd judgment debtors’ motion was filed on 8 February 2021, while the garnishee bank’s preliminary objection was filed on 5 March 2021. The judgment creditor opposed both processes. I shall accordingly take the arguments of the parties in respect of these two processes one after the other.

THE 1ST TO 3RD JUDGMENT DEBTORS’ MOTION ON NOTICE

The Submissions of the 1st to 3rd Judgment Debtors
6. The 1st to 3rd judgment debtors’ motion on notice is brought pursuant to sections 6(6)(b) and 36(1) of the 1999 Constitution and the inherent jurisdiction of the Court. In the main, the 1st to 3rd judgment debtors are praying this Court for:
(1) An order setting aside the order nisi made by this Honourable Court on the 2nd of December, 2020, against the judgement debtors/applicants for want of jurisdiction.
(2) And for such further or other order(s) as this Honourable Court may deem fit to make in the circumstances.

7. The grounds of the application are:
(1) This Honourable Court delivered judgment on the 27th May, 2020, against the judgment debtors/applicants in Suit No: NICN/ABJ/125/2018 between Captain Benedict Olusoji Akanni v. Nigerian Army & ors.
(2) Dissatisfied with the judgment of the Court, the judgement debtors/applicants filed a notice of appeal before the Court of Appeal on the 26th June, 2020, challenging the said judgment of the Honourable Court delivered on the 27th May, 2020, against the judgment debtors/applicants and the said notice of appeal was served on the judgement creditor/respondent.
(3) The judgment debtors/applicants have complied and transmitted record of appeal on the 3rd of September, 2020. The said record of appeal was served on the judgment creditor/respondent.
(4) Appeal has been entered and Appeal No has been given as Appeal No: CA/ABJ/CV/768/2020.
(5) The judgment debtor/applicant filed an application for stay of execution of the judgment of this Honourable Court delivered on the 27th May, 2020 at the Court of Appeal on the 19th day of January, 2021.
(6) The judgment creditor/respondent through a motion on notice applied to the National Industrial Court for an order nisi. Same was granted by this Court on the 2nd December, 2020 and the Court made an order nisi against the judgment debtor/applicant and the garnishee for the judgment sum.
(7) The judgment creditor/respondent concealed facts and failed to inform this Honourable Court that there is a pending appeal against the judgment of this Honourable Court at the Court of Appeal.
(8) The said order granting the garnishee order nisi is a nullity as this Honourable Court has been seized of jurisdiction to entertain the matter, since there is a pending appeal at the Court of Appeal.
(9) The filing of the motion ex-parte for an order nisi is an abuse of court process.
(10) This Honourable Court has the inherent power and jurisdiction to set aside its order of 2nd day of December, 2020.
(11) It is in the overriding interest of justice that this application be granted.

8. The 1st to 3rd judgment debtors submitted a sole issue for determination i.e. whether this Honourable Court has the power to grant the reliefs sought in this application in the circumstance.

9. To the 1st to 3rd judgment debtors, the principle has been laid down in a plethora of cases in respect of this type of application to set aside an order, ruling or judgment of a court. That in Tomtec (Nig) Ltd v. FHA [2009] 18 NWLR (Pt. 116) 382 the Supreme Court stated thus:
Court of record have (sic) the inherent jurisdiction to set aside their judgments/decisions/orders, in appropriate cases, or under certain circumstances, which include when:
(a) The judgment is obtained by fraud or deceit either in the court or of one or more of the parties.
(b) The judgment is a nullity.
(c) It is obvious that the court was misled into giving the judgment under a mistaken belief that the parties consented to it.
(d) The Judgment was given in the absence of jurisdiction.
(e) The proceedings adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
(f) Where there is fundamental irregularity.
(Emphasis is the 1st to 3rd judgment debtors’.)
Also referred to the Court are: Igwe v. Kalu [2002] 14 NWLR (Pt. 787) 435, Odofin v. Otugbanji [1996] 3 NWLR (Pt. 435) 126 and Alawiye v. Ogunsanya [2003] 5 NWLR (Pt. 1348) 520.

10. That in the light of the above, this Court has the powers to set aside its order nisi. That the order nisi was given in the absence of jurisdiction. This is because the judgement debtors/applicants have already filed an appeal at the Court of Appeal. Furthermore, the appeal filed by the judgment debtors/applicants is also backed by filing of an application for stay of execution of the judgment of this Honourable Court as deposed to in the affidavit in support...