CORAM

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HON. JUSTICE O.A. OBASEKI-OSAGHAE

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PARTIES

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ECOBANK NIGERIA LIMITED

CLAIMANT(S) 

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1. HAROLD OKHIONKPAMWONYI IDEMUDIA.

2. THE CHIEF REGISTRAR NATIONAL INDUSTRIAL COURT OF NIGERIA, ABUJA

3. THE DEPUTY SHERIFF NATIONAL INDUSTRIAL COURT OF NIGERIA, ABUJA

DEFENDANTS 

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AREA(S) OF LAW

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EMPLOYMENT LAW, CIVIL PROCEDURE, PRACTICE AND PROCEDURE, POST-JUDGMENT PROCEEDINGS, ENFORCEMENT OF JUDGMENT, WRIT OF ATTACHMENT, RES JUDICATA, ABUSE OF COURT PROCESS, STAY OF EXECUTION, SELF-HELP, APPEAL, CONTEMPT, FINALITY OF JUDGMENT, COURT OF APPEAL JURISDICTION

 

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SUMMARY OF FACTS

The background to this suit is a protracted employment dispute originating from Suit No. NICN/ABJ/113/2014 — Harold Idemudia v. Ecobank Nigeria Ltd — in which Hon. Justice M.N. Esowe delivered judgment on 25th May 2017 in favour of the 1st Defendant (the Judgment Creditor), ordering the Claimant (Ecobank Nigeria Limited, the Judgment Debtor) to pay: seven months’ salary at N565,325.69 per month; one month’s thirteenth month salary of N357,047.80; retirement pension from July 2013 to 4th February 2014; N5,000,000 general damages; and 10% interest after 60 days of non-compliance.

Dissatisfied, Ecobank appealed in CA/A/135/2018 and the 1st Defendant cross-appealed in CA/A/136/2018. On 29th November 2023, the Court of Appeal unanimously dismissed Ecobank’s appeal and affirmed the trial court’s judgment in full. The Court of Appeal also allowed the 1st Defendant’s cross-appeal and granted him his entitlement to gratuity, which had been refused at first instance.

Rather than paying the judgment sum as affirmed and augmented by the Court of Appeal, Ecobank unilaterally applied the sum of N11,631,892.39 — which it calculated as the judgment debt — against an alleged indebtedness of the 1st Defendant to Ecobank in the sum of N47,056,131.82, and notified the 1st Defendant by letter that it had done so and that a balance of N35,444,239.22 remained due from the 1st Defendant to it. Ecobank credited this sum into the 1st Defendant’s staff salary account domiciled with itself. The 1st Defendant denied instructing payment into that account, denied being indebted to Ecobank, and denied receiving the judgment sum.

The 1st Defendant then applied to the trial court for enforcement of the judgment. Ecobank filed a motion (NICN/ABJ/24M/2024) seeking to restrain execution, which Hon. Justice S.O. Adeniyi dismissed on 15th July 2024, holding that Ecobank’s unilateral payment into its own-held account constituted self-help. Ecobank filed what it claimed was a Notice of Appeal on 18th July 2024 and an application for stay of execution. However, neither the Notice of Appeal nor the stay application bore any Court of Appeal stamp, appeal number, Registry assessment, or evidence of filing fees or service on the Defendants.

Notwithstanding, the 1st Defendant procured the 2nd and 3rd Defendants (the Chief Registrar and Deputy Sheriff of the NICN) to execute the judgment on 22nd July 2024 via a writ of attachment in the sum of N21,819,319.33. The enforcement was completed and the judgment sum released to the 1st Defendant.

Ecobank thereafter filed the present suit on 29th August 2024 by Originating Motion, seeking to set aside the writ of attachment and the enforcement, and seeking return of three cheques it had issued during execution. Ecobank contended that the Court of Appeal had substantially varied the trial court’s judgment (a contention the Court expressly rejected on the face of the Court of Appeal’s judgment) and that the writ of attachment was based solely on the trial court’s judgment without regard to that variation. The 1st Defendant raised res judicata and abuse of process, contending that the same grounds had already been litigated and determined in NICN/ABJ/24M/2024.

 

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HELD

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The Court, presided over by Hon. Justice O.A. Obaseki-Osaghae, dismissed the suit entirely and awarded costs of N500,000 each to the 2nd and 3rd Defendants.

The Court held that the Claimant’s contention that the Court of Appeal varied the trial court’s judgment was factually erroneous — the Court of Appeal’s judgment in CA/A/135/2018 unambiguously affirmed the trial court’s decision in its entirety. The only intervention by the Court of Appeal was through the 1st Defendant’s cross-appeal CA/A/136/2018, which added an entitlement to gratuity. The Court of Appeal’s decision is final by virtue of Section 243(1) of the 1999 Constitution.

The Court further held that the purported Notice of Appeal and stay application filed by Ecobank bore no Court of Appeal stamp, appeal number, Registry assessment, or proof of filing fees, and that there was accordingly no valid Notice of Appeal and no pending motion for stay of execution capable of restraining enforcement. There was therefore nothing to stop the 2nd and 3rd Defendants from proceeding with execution.

Finally, the Court held that the grounds, facts, and issues in the present suit were identical to those raised and determined in NICN/ABJ/24M/2024. The suit was therefore caught by the doctrine of res judicata and constituted an abuse of the process of court. The proper order was dismissal.

 

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ISSUES

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1. Whether the execution of the judgment of the trial Court by the 2nd and 3rd Defendants, notwithstanding the compliance by the Claimant with the judgment of the Court of Appeal and the pendency of the motion for stay of execution, is wrongful, irregular and liable to be set aside?

2. Whether the issuance of the writ of attachment for the sum of N21,819,319.33 and the execution of the trial Court’s judgment of 29th May 2017 without due regard to the judgment of the Court of Appeal in CA/A/135/2018 delivered on 29th November 2023, which is alleged to have substantially varied the trial Court’s judgment, is wrongful, irregular and ought to be set aside?

 

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RATIONES DECIDENDI

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COURT OF APPEAL JUDGMENT — DECISION OF COURT OF APPEAL ON APPEALS FROM NICN IS FINAL AND THE JUDGMENT DEBTOR MUST COMPLY OR AWAIT ENFORCEMENT

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“By the provisions of Section 243 (1) of the 1999 Constitution as amended, the decision of the Court of Appeal in respect of any appeal arising from any civil jurisdiction of the National Industrial Court shall be final. There is no further appeal in respect of the decision of the Court of Appeal. The Claimant/Judgment Debtor either willingly complies with the Judgment of the Court, or awaits enforcement by the 1st Defendant/Judgment Creditor.” – Per O.A. Obaseki-Osaghae, J.

 

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STAY OF EXECUTION — APPLICATION FOR STAY OF EXECUTION MUST BE GROUNDED UPON AN EXISTING VALID NOTICE OF APPEAL AND ABSENCE OF VALID APPEAL MEANS NOTHING PREVENTS ENFORCEMENT

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“It is trite law that the application for a stay of execution is grounded upon an existing valid notice of appeal. There is no valid notice of appeal filed against the Ruling, or a pending motion for stay of execution, neither is there evidence that any process was served on the Defendants to put them on notice. I find that there was nothing to prevent and/or stop the 2nd and 3rd Defendants from enforcing the Judgment of the Court.” – Per O.A. Obaseki-Osaghae, J.

 

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RES JUDICATA — WHERE AN ISSUE HAS BEEN LITIGATED UPON AND A FINAL JUDGMENT DELIVERED ON THE MERITS THE DOCTRINE OF RES JUDICATA APPLIES TO BRING AN END TO FURTHER LITIGATION OF THAT ISSUE

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“Where an issue has been litigated upon and a final judgment has been delivered on the merits, the issue should be regarded as decided forever, and the doctrine of res judicata is to be applied to bring an end to litigation; see Adeyefa v Bamgboye (2014) 11 NWLR (Pt 1419) 520 SC, Caraway Ventures Integrated Nig. Ltd v Jakana & ors (2022) LPELR 58219 (CA).” – Per O.A. Obaseki-Osaghae, J.

 

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ABUSE OF COURT PROCESS — A PARTY CANNOT RE-LITIGATE ISSUES ALREADY DECIDED BY FORMULATING A FRESH CLAIM AND SUCH CONDUCT CONSTITUTES ABUSE OF COURT PROCESS WARRANTING DISMISSAL

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“The issues in this suit have already been decided in the Ruling in Suit No: NICN/ABJ/24M/2024. This Court cannot sit on appeal over the Ruling. The Claimant cannot re-litigate the issues by formulating a fresh claim as it has done by this action, see Cole v Jibunoh (2016) LPELR -40662 (SC) 54, A-E, Oleksandr v Lonestar Drilling Co Ltd (2015) LPELR 24614 (SC) 49-50. This suit is clearly an abuse of the process of Court, see Nyako v UBA plc (2019) LPELR-46587 (CA). The proper order to make in this instance is that of a dismissal.” – Per O.A. Obaseki-Osaghae, J.

 

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SELF-HELP — JUDGMENT DEBTOR WHO UNILATERALLY APPLIES JUDGMENT SUM TO OFFSET ALLEGED INDEBTEDNESS OF JUDGMENT CREDITOR WITHOUT COURT ORDER COMMITS SELF-HELP

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“Learned Counsel stated that it is a settled principle of law that a Court cannot overrule itself or sit on appeal on its own decision. He cited F.B.N. v. Asubop Co. (Nig.) Ltd. (2003) 13 NWLR (PT. 836) 1 at 14-15… He further submitted that the act of the claimant clearly amounts to self-help.” – Per O.A. Obaseki-Osaghae, J.

 

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COMPLETED ACT OF ENFORCEMENT — WHERE ENFORCEMENT OF JUDGMENT IS A COMPLETED ACT AND JUDGMENT SUM HAS BEEN RELEASED TO JUDGMENT CREDITOR A SUBSEQUENT SUIT TO SET ASIDE THE ENFORCEMENT IS OTIOSE

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“The Judgment of the Court has been enforced; and the 1st Defendant in paragraph 22 of his counter affidavit states: ‘That the Judgment of the National Industrial Court and that of the Court of Appeal in appeal nos: CA/A/135/2018 and CA/A/136/2018 were enforced on the 22nd of July, 2024 according to the writ of attachment issued by the National Industrial Court and the judgment sum long released to the 1st Defendant.’ By this deposition, it is clear that the enforcement of the Judgment is a completed act. What then is the purpose of this suit instituted by the Claimant on 29th August 2024 against the Defendants?” – Per O.A. Obaseki-Osaghae, J.

 

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VALIDITY OF NOTICE OF APPEAL — A NOTICE OF APPEAL THAT BEARS NO COURT OF APPEAL STAMP NO APPEAL NUMBER NO REGISTRY ASSESSMENT AND NO EVIDENCE OF PAYMENT OF FILING FEES IS NOT A VALID NOTICE OF APPEAL

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“The said Notice of Appeal (Exhibit E1) was not filed at the Court of Appeal, it has no appeal number or the stamp of the Court of Appeal; there is no evidence that the motion for stay of execution was duly filed (Exhibit E2). There is no assessment by the Registry on the process, neither is there evidence of payment of filing fees.” – Per O.A. Obaseki-Osaghae, J.

 

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GROUNDS FOR SETTING ASIDE COURT ORDER — A TRIAL COURT CAN SET ASIDE ITS ORDER WHERE OBTAINED BY FRAUD OR DECEIT THE JUDGMENT IS A NULLITY THE COURT WAS MISLED OR MATERIAL FACTS WERE CONCEALED

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“It is trite law that a trial Court can set aside its order when it is obtained by fraud or deceit, the judgment or order is a nullity, the court was misled into giving judgment or making the order under a mistaken belief that the parties consented to it, the judgment or order was made in the absence of jurisdiction, the procedure adopted was such as to deprive the decision or judgment or order made of the character of a legitimate adjudication, the judgment or order is obtained based on concealment of material facts. Counsel cited Ene v. Asikpo (2010) 10 NWLR (Part 1203) 477 at 517.” – Per O.A. Obaseki-Osaghae, J.

 

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COURT OF APPEAL AFFIRMATION OF TRIAL COURT — WHERE COURT OF APPEAL AFFIRMS TRIAL COURT JUDGMENT IN UNAMBIGUOUS TERMS CONTENTION THAT JUDGMENT WAS VARIED IS ERRONEOUS AND MUST FAIL

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“The Court of Appeal unanimously dismissed the Claimant’s appeal per James Gambo Abundaga JCA: ‘The end result is that all three issues having been resolved in favour of the Respondent and against the Appellant the appeal is devoid of merit and is hereby dismissed. In consequence the judgment of the trial court delivered on 25th May 2017 by Hon Justice M.N Esowe is hereby affirmed.’ The Court of Appeal did not vary or set aside the judgment of Hon Justice M.N. Esowe as argued by learned counsel to the Claimant.” – Per O.A. Obaseki-Osaghae, J.

 

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PENDENCY OF STAY APPLICATION — A PARTY WHO HAS NOTICE OF A PENDING COURT PROCESS FOR STAY OF EXECUTION IS BOUND TO STAY ALL ACTIONS UNTIL DETERMINATION OF THE MOTION

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“He further submitted that once a party has had notice of the pendency of such a court process; he is bound to stay all actions until the determination of the motion and he referred to Nigerite Ltd v. Dalami Nigeria Ltd (1992) 7 NWLR (Part 253) page 288 at 298.” – Per O.A. Obaseki-Osaghae, J.

 

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COURT CANNOT SIT ON APPEAL OVER ITS OWN RULING — ISSUES DETERMINED IN A PRIOR RULING OF THE SAME COURT CANNOT BE RE-LITIGATED BEFORE THE SAME COURT

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“The issues in this suit have already been decided in the Ruling in Suit No: NICN/ABJ/24M/2024. This Court cannot sit on appeal over the Ruling.” – Per O.A. Obaseki-Osaghae, J.

 

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ADDITION OF NEW DEFENDANTS DOES NOT CURE ABUSE OF PROCESS — WHERE SUBSTANTIVE GROUNDS AND ISSUES ARE THE SAME AS IN A PRIOR DISMISSED SUIT THE ADDITION OF NEW DEFENDANTS TO THE FRESH SUIT CHANGES NOTHING

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“The grounds, facts, and issues upon which the Claimant has brought this application are exactly the same grounds, facts and issues raised by it in its earlier application for restraining injunctive orders that was dismissed in the considered Ruling in Suit No: NICN/ABJ/24M/2024… Counsel submitted that this suit is an abuse of court process as the Ruling of 15th of July 2024 serves as a necessary stumbling block; and that the addition of the 2nd and 3rd Defendant to the suit changes nothing.” – Per O.A. Obaseki-Osaghae, J.

 

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PROPER ORDER WHERE SUIT IS ABUSE OF COURT PROCESS — DISMISSAL IS THE APPROPRIATE ORDER WHERE A SUIT IS FOUND TO BE AN ABUSE OF COURT PROCESS

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“This suit is clearly an abuse of the process of Court, see Nyako v UBA plc (2019) LPELR-46587 (CA). The proper order to make in this instance is that of a dismissal, see Ladejo v. Ajimobi [2016] 10 NWLR (Pt. 1519) 88 at 128 paras A-B. This case is dismissed. Costs in the sum of N500,000.00 is awarded each of the Defendants.” – Per O.A. Obaseki-Osaghae, J.

 

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CASES CITED

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria 1999 (as amended), Section 243(1) NIC (Civil Procedure) Rules 2017, Order 49 Rule 25

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT

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COUNSEL

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1. P. Biobele-Georgewill for the Claimant, with S.O. Nwokolo.

2. M. K. Bielonwu for the 1st Defendant, with L.P Osakwe.

3. No appearance for the 2nd and 3rd Defendants