Introduction
The National Industrial
Court (“NIC”) has been listed as one of the superior courts of record in
Nigeria by the third amendment to the 1999 constitution. Hence it has full
constitutional capacity at par with any High Court in Nigeria.[2] Garnishee proceedings is one of the
ways (and a generally preferred one) monetary judgments can be enforced in
Nigeria and our jurisprudence is rich with the interpretation of the provisions
of the Sheriff and Civil Processes Act, (the overriding and generally
applicable law), decided cases and even commentaries of legal scholars and
authors.
However, unlike the
procedure for garnishee proceedings adopted by the High Courts of the various
states, and the Federal High Court, there are some differences in the way the
National Industrial Court Civil Procedure Rules 2017 prescribes that garnishee
applications should be handled at the NIC which is considered worthy of this
commentary. These procedural differences recently impacted a successful
litigant,[3] who was seeking to reap the fruit of
litigation via garnishee proceedings at the NIC, with very unpleasant
consequences, hence this critique.
Procedural differences in
the garnishee application proceedings at the NIC compared to that of the High
Courts.
Relevant Facts:
After obtaining a monetary judgment at the NIC, Lagos and at the expiration of
the of 30 days grace period that the Honourable Judge gave the judgment debtor
to pay the judgment sum and following the judgment debtor’s failure to pay the
judgment sum as ordered by the Court, an application for garnishee proceedings
was filed, pursuant to the Sheriff and Civil Processes Act. Upon filing the
application, counsel followed up with the registry of court with a view to
obtaining a date for the hearing of the said application – ostensibly before
the same judge that delivered the judgment. It was after mounting pressure with
a view to obtaining a hearing date for the garnishee proceedings that the
registrar called the attention of counsel to the fact that the case file had
not been assigned to a judge. Upon that information, further enquiries were
made whereupon the registrar took time to explain the garnishee application
procedure at the NIC in detail.
Order 47 rule 19 of
the NIC Civil Procedures Rules 2017 provides that “any proceedings initiated
as a Post Judgment proceeding or any application brought or filed as a post
Judgment proceedings shall be given a new Suit Number”. By virtue of this
provision, the first thing to note is that the NIC considers a garnishee
application as a post-judgment application for which a new file must be created
unlike the practice at the High Courts where the same case file in which the
monetary judgment was delivered is utilised for the garnishee proceedings.
Secondly, the garnishee application will be given a new motion number and a new
file number comprising of the old case number but with additional designation
of letter ‘m’ to indicate that it is a new process entirely and in compliance
with order 47 rules 18, 19 and 20 of the
rules of court. This is unlike the practice at the High Courts which continue
the use of the same old case file and number. The third difference is that the
new garnishee application file will have to go through re-assignment procedure
where it may or may not be assigned to the same judge that heard and delivered
the monetary judgment. This also is unlike the practice in the High Courts
where the same judge that heard and delivered the judgment will usually hear
and determine the garnishee application.
It should be noted though,
that Order 47 Rule 21 of the NIC Civil Procedures Rules 2017 provides
that “any application filed as post-judgment proceedings shall unless
otherwise directed by the President of the Court be heard and
determined by the Judge who heard the substantive suit” but the effect of
the preceding provisions of rules 18, 19, and 20 renders the benefit of the
rule 21 ineffectual in practice as experienced in the case under reference.
Critique of the provisions
of Order 47 Rules 18, 19, and 20 of the NIC Civil Procedure Rules 2017 with
respect to garnishee application.
The practice of having the
trial court return the case file to the Registry of the Court’s Division and
creating separate case file for garnishee application can extend the
turn-around time of the garnishee proceedings itself as was experienced in the
case referenced herein. The new post-judgment application file could not be
created timely as the court ran out of branded file jackets with which to
create the new case file. The registry too could not create a temporary file
jacket for the application despite several pressures mounted on them.
Considering how fast such an application should be heard, the bureaucracy of
creating a fresh case file for an application that should be determined quickly
could significantly reduce the effectiveness of deploying a garnishee
proceedings to enforce a monetary judgment at NIC.
Secondly, the practice of
giving a new motion number comprising of the old case number but with
additional designation of letter ‘m’ to it is an unnecessary surplusage that
tends to waste time. Though a post-judgment application, a garnishee
application is still an application in the cause in which judgment has been
delivered. For example, an application to correct clerical error in a judgment
is not normally given a fresh file number (at least at the High Courts), so why
does a garnishee application require that fresh case numbering.
The third critique concerns
practice of possibly having a garnishee application file re-assigned to another
judge. The new file stands the risk of not being reassigned on time along with
suffering from other vagaries of the officials who have the responsibility to
ensure quick reassignment of the case file. In the case under reference, the
additional excuse from the registry, after mounting pressure on them, was that
the registry was out of stock of the branded file jacket in which they place
new matters before sending the new case file for assignment. Consequently, the
new garnishee application file was not assigned to a judge for hearing until at
least 3 months after the application was filed. This practice, which is
understood to have been put in place to ensure that another judge is able to
attend to the new motion case file on time in the event of retirement or
transfer of the judge who delivered the judgment, and to avoid other
administrative bottleneck that may arise after the judgment has been delivered,
has not worked out well. In fact, the opposite of the intended results were the
consequences that attended the experience narrated above.
Recommendations
Enforcement of judgment via
garnishee proceedings is a veritable means through which a successful litigant
in a monetary judgment can reap the fruits of a favourable decision, but when
the proceedings takes so long to commence after filing the application, the
very aim of the proceedings is defeated. It is important that the President of
the NIC reviews this rules of practice at the next review of the rules of
court. The present rules of court also make provisions for enforcement of
judgments through garnishee proceedings in Order 51. We recommend that the
present practice of processing, assigning, and handling the case file in which
a judgment or order has been delivered in line with Order 47 Rules 18, 19 and
20 of the Rules of court should be discontinued while the case file in which
there is a garnishee application immediately, and by default, be brought to the
attention of the judge that delivered the judgment or order as is the practice
in the High Courts. It is only if such judge is otherwise unavailable that the
hearing of the application should be assigned to another judge for speedy
hearing and determination of the application. This way, the provisions of
Orders 47 Rule 21 and 51 of the NIC Civil Procedures Rules 2017 will be
effectively deployed to satisfactory effect in garnishee proceedings before the
NIC in favour of successful monetary judgment litigants and creditors.
Since the present practice
is based on the rules of court and the next round of review of the rules of
court may take some years to be done, my Lord the President of the NIC is urged
to issue a practice direction to effect the required changes in the meanwhile.
______________________________________________________________
For further information on
this article and area of law,
please contact Peter
Olaoye Olalere at: S. P. A. Ajibade & Co., Lagos
by telephone (+234 1 472
9890), fax (+234 1 4605092)
mobile (+234 815 979 4216)
email (oolalere@spaajibade.com or olaoye.olalere@nigerianbar.org)
[1] Notary
Public for Nigeria and Senior Associate with the Dispute Resolution
Department of S. P. A. Ajibade & Co., Lagos Office, Nigeria.
[2]
See sections 6 (5) (cc); 84 (4); 240; 243 (2 & (4) and 254 (A), (B), (C),
(D), and of the Constitution of the Federal Republic of Nigeria, 1999 (as
amended by Third Alteration 2010, Act No. 3).
[3]
The monetary judgement was delivered on Friday 22nd November
2019 by His Lordship Hon. Justice Elizabeth A Oji, Phd in Suit
No: NICN/LA/464/2016 Prof. Dr Mansi El-Mansi v. Elizade University,
accessible at https://judgement.nicnadr.gov.ng/details.php?id=3955.
Source: SPA Ajibade &
Co.