FIDELITY BANK v. MCL SOLUTIONS LTD & ANOR (2021)

FIDELITY BANK v. MCL SOLUTIONS LTD & ANOR

(2021)LCN/15118(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, March 04, 2021

CA/L/550/2016

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Paul Obi Elechi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

FIDELITY BANK PLC APPELANT(S)

And

1. MCL SOLUTIONS LIMITED 2. WOOBS RESOURCES LTD RESPONDENT(S)

RATIO

WHETHER A COURT CAN IGNORE AN ORDER MADE BY ANOTHER COURT OF COMPETENT JURISDICTION

It is trite law that no Court can ignore an order made by another Court of competent jurisdiction. In the case of NNAJI V ANEKE 1996 2 NWLR PT 430 269 C.A. at page 276 para A, this Court held thus: “The Court of Appeal or any other Court cannot ignore any order properly made by a Court of competent jurisdiction. However, such order would be rejected or set aside if it is shown to be an abuse of the process of Court. In the instant case the argument by the Appellant’s Counsel that for the purpose of determining the present appeal the later order of the learned trial judge should not be given recognizance cannot be right”. This Court similarly held in UBA LTD V ONAGORUWA 1996 3 NWLR PT 439 700 C.A. 703 at page 709 para F that: “As long as the order of Fernandez J making Mrs. R.F Onagoruwa a necessary signatory to the account in question subsists, Alabi J cannot ignore it”. In the case of EMODI V KWENTOH 1996 2 NWLR PT 433 656 S.C. p 659 at p 681 paras A – B, the Supreme Court aptly held thus: “A Judge is not competent to overrule the decision or ruling of another Judge or sit in judgment over the decision of another Judge of co-ordinate jurisdiction”. PER HUSSEIN MUKHTAR, J.C.A.

EFFECT OF A VALID ORDER

… in the case of GOV OYO STATE V AKINYEMI 2003 1 NWLR PT 800 1 C.A. 9 at p 20 paras A – B, this Court held that: “An Order of Court subsists until set aside.” PER HUSSEIN MUKHTAR, J.C.A.

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): The 1st Respondent was the Claimant at the High Court of Lagos State where he commenced the action by a Writ of Summons and all the front loading documents undated but filed on 15th of August, 2014 wherein the following claims were made:
(a) The sum of N36,039,165.19 (Thirty Six Million, Thirty Nine Thousand, One Hundred and Sixty Five Naira, Nineteen Kobo) only representing 15% of N240, 261,101.28 (Two Hundred and Forty Million, Two Hundred and Sixty One Thousand, One Hundred and One Naira, Twenty Eight Kobo) only being the excess charges on the accounts of the Defendant (the 2nd Respondent) acknowledged by Oceanic Bank (now Ecobank).
(b) The interest on the said sum at the rate of 22% (per annum from the time of commencement of this action until judgment and thereafter at the rate of 18% per annum until the liquidation of the entire judgment sum is made to the Claimant (the 1st Respondent).
(c) The sum of N5,000,000.00 (Five Million Naira) only as general damages.
(d) The sum of N1,000,000.00 (One Million Naira) only being the cost of prosecuting this action.

(e) Interest pursuant to Order 35 Rule 4 High Court of Lagos State (Civil Procedure) Rules on the judgment debt and cost at the rate of 18% per annum from date of judgment until actual liquidation of the judgment debt.

The 2nd Respondent (the Defendant) at the lower Court was served with the Writ of Summons and all the front loading documents evidenced by an Affidavit of Service deposed to by one Adebola Ojo.
The 2nd Respondent (the Defendant) at the lower Court did not file any Statement of Defence.

The 1st Respondent (the Claimant) at the lower Court filed Motion on Notice dated 3rd of November, 2014, an Affidavit in Support and a Written Address for Summary Judgment. The 2nd Respondent was served with such processes but did not file any Counter-Affidavit to that motion for summary judgment. The lower Court subsequently entered judgment in favour of the 1st Respondent in the following terms:
(i) That the Defendant is ordered to pay the Claimant the sum of N36, 039,165.19 (Thirty Six Million, Thirty Nine Thousand, One Hundred and Sixty Five Naira, Nineteen Kobo) only representing the 15% of N240, 261,101.28 (Two Hundred and Forty Million, Two Hundred

and Sixty One Thousand, One Hundred and One Naira, Twenty Eight Kobo) only being the excess charges on the accounts of the Defendant acknowledged by Oceanic Bank (now Ecobank).
(ii) The Defendant is ordered to pay the Claimant the interest on the said sum at the rate of 22% per annum from the time of commencement of this action until judgment and thereafter at the rate of 10% per annum until the liquidation of the entire judgment sum is made to the Claimant.
(iii) General damages of N500,000.00 (Five Hundred Thousand Naira) only is awarded to the Claimant.
(iv) Cost of N50, 000 only is awarded to the Claimant.
(v) Claim 5 is hereby refused as no evidence was led in support.

Thereafter, the 1st Respondent filed Motion-Exparte, dated 11th December, 2015 for Garnishee Order Nisi. The Motion Exparte was heard on the 15th of December, 2015 and the Court below granted the garnishee order nisi.

The Appellant was then served with the enrolment order of the Garnishee Order Nisi and consequently, the Appellant (9th Garnishee) at the lower Court filed its Affidavit to show cause dated 25th February, 2015 wherein the Appellant stated as

follows:
1. That the 2nd Respondent maintains two accounts with a credit balance. These are; Account Number 4010779717, with credit balance of N5, 912,817.54 and Account Number 4010020172 with credit balance of N5, 026,805.70. However, the Appellant also stated in its Affidavit of show of cause that these Accounts are currently subject to attachment by the Order of Mareva Injunction dated 1st November, 2011 made by Hon. Justice M.B. Idris of the Federal High Court, Lagos freezing all the bank accounts of the 2nd Respondent for the benefit of Assets Management Corporation of Nigeria (AMCON).

On the 8th April 2015, the Court below made the order absolute against the Appellant (9th Garnishee) notwithstanding the information furnished in the Affidavit of show of cause and the exhibited Federal High Court Order. The Appellant was disgruntled with that decision and therefore filed a Notice of Appeal dated 3rd May 2015 based on lone ground of appeal, from which a lone issue was equally raised for determination, thus:
Whether the Learned Trial judge was right to have made the Garnishee Order absolute in view of the subsisting orders of Mareva Injunction

against the 2nd Respondent’s two accounts with the Appellant.

It was argued for the Appellant that it was wrong for the Court below to proceed to make the Garnishee Order absolute on the face of the cause shown by Appellant that the 2nd Respondent’s Accounts numbers 4010779717 and 4010020172 maintained by the 2nd Respondent in the Appellant Bank were both under valid and subsisting orders of Mareva Injunction issued by the Federal High Court in another suit, on 1st November 2011, placing the two accounts under mareva restriction. It was submitted that these reason are not only sufficient but compelling enough for the Court below to discharge the order nisi. The Court was urged to resolve the sole issue in favour of the Appellant, set side the order absolute and discharge the order nisi.

The learned counsel for the 1st Respondent Okoli Uchenna Godwin, Esq adopted the sole and conceded that when the Appellant was served with the enrolment order of the Garnishee Order Nisi, it filed its Affidavit to show cause dated 26th February 2016 wherein the Appellant stated that the 2nd Respondent maintains two accounts numbers 4010779717 and 4010020172 with

credit balances of N6,912,817.64 and N5,026805 respectively. He referred to the Appellant’s deposition in its Affidavit to show cause that these Accounts are currently subject to and attached by the Order of Mareva Injunction dated 1st November, 2011 made by Hon. Justice M.B Idris of the Federal High Court, Lagos freezing all the bank accounts of the 2nd Respondent for the benefit of Assets Management Corporation of Nigeria (AMCON). He however, argued that the order absolute was rightly made since there was a second order by same Court on 17th November 2011, wherein the Court varied its initial order and authorized the customer to pay in cheques, draw money up to the limit of N120 Million monthly to meet the day to day operational needs of the company. This was the reason why the Court below made the order nisi absolute on 8th April 2016.

The Court below on the 8th day of April, 2016 made the Garnishee Order absolute against the 2nd Respondent’s two Accounts Nos. 4010779717 and 4010020172 with Credit balances of N6,912,817.64 and NS026,805 respectively, the 2nd Respondent’s maintains in the Appellant Bank.

It was further argued for the 1st

Respondent that the Appellant’s refusal to pay the said money in the 2nd Respondent’s accounts to the 1st Respondent was wrong despite the subsisting Federal High Court Order of Mareva injunction attaching the two accounts.

It was further argued that the order absolute was a final judgment that can only be set aside on appeal while a Mareva injunction is an interlocutory order that can be vacated by the Court that issued the order if the need arises and therefore the Garnishee Order Absolute should take precedence over the order of Mareva Injunction. The learned counsel cited the case of Garba vs Ummuani (2012) LPELR- 9841 CA, to demonstrate when a decision is interlocutory and when it is final. He urged the Court to dismiss the Appeal for lacking in merit.

With all due respect, the Respondent’s arguments on which order is interlocutory and which one is final and which order takes precedence over which is grossly misconceived. In so far as an order is made by a Court, another Court of coordinate jurisdiction cannot overrule or review it. It may be set aside by the Court that made the order only if the necessary preconditions for setting aside the

order have been established, which is a non-issue in the instant case. The scenario here is a situation where a final order of attachment that is Garnishee Absolute was made by a Court of coordinate jurisdiction notwithstanding cause shown why such order ought not to have been made due to a live and subsisting order of mareva injunction made by another judge of coordinate jurisdiction on the same accounts maintained by the 2nd Respondent with the Appellant.
It is trite law that no Court can ignore an order made by another Court of competent jurisdiction. In the case of NNAJI V ANEKE 1996 2 NWLR PT 430 269 C.A. at page 276 para A, this Court held thus:
“The Court of Appeal or any other Court cannot ignore any order properly made by a Court of competent jurisdiction. However, such order would be rejected or set aside if it is shown to be an abuse of the process of Court. In the instant case the argument by the Appellant’s Counsel that for the purpose of determining the present appeal the later order of the learned trial judge should not be given recognizance cannot be right”.
This Court similarly held in UBA LTD V ONAGORUWA 1996 3 NWLR PT 439 700 C.A.

703 at page 709 para F that:
“As long as the order of Fernandez J making Mrs. R.F Onagoruwa a necessary signatory to the account in question subsists, Alabi J cannot ignore it”.
In the case of EMODI V KWENTOH 1996 2 NWLR PT 433 656 S.C. p 659 at p 681 paras A – B, the Supreme Court aptly held thus:
“A Judge is not competent to overrule the decision or ruling of another Judge or sit in judgment over the decision of another Judge of co-ordinate jurisdiction”.
In the instant case, it suffices to say that the subsisting orders made by Hon. Justice M.B. Idris of the Federal High Court, Lagos, on the 1st of November, 2011 as stated in the Affidavit of show of cause ought not to have been ignored by Hon. Justice O. A Taiwo of High Court of Lagos in making the Garnishee Order Nisi Absolute on 8th April 2016 inspite of drawing the attention of the Court below to the subsisting orders vide the affidavit to show cause which the Appellant filed on the 26th February 2016.
It is glaringly clear that, at the time Hon Justice O.A Taiwo of Lagos High Court made the Garnishee nisi absolute, the order of Mareva Injunction made by Hon. Justice M.B. Idris

of the Federal High Court Lagos on the 1st November 2011 was still valid and subsisting though varied on 17th November 2011 but was never vacated. In fact, the Appellant at the point of filing its Affidavit of show of cause, disclosed all these facts to the Court below and also attached both the 1st and second orders made by Hon. Justice M.B. Idris of the Federal High Court (as he then was). These facts were clearly stated in the Affidavit to show cause filed by the Appellant (9th Garnishee).
For the avoidance of doubt, paragraph 3 (a) – (f) of the Appellant’s Affidavit showing cause filed at the lower Court is reproduced as follows:
“3. That I was informed by Silas Nwaulune, a Legal Officer in the Legal Department of the 9th Garnishee herein, in our office on the 11th February, 2016 at about 1.30p.m and I verily believed him as follows:
(a) That on the 16th December 2015, a garnishee order nisi was made by Hon. Justice O.A. Taiwo of the High Court of Lagos State sitting in Lagos and served on the 9th Garnishee on the 11th of February, 2016.
(b) That upon the receipt of the said order nisi a bank wide search was conducted into the record

of the bank to ascertain whether the 9th Garnishee holds account(s) in favour of the Judgment Debtor/Defendant.
(c) That further to the search as conducted; the 9th Garnishee hereby confirms that the Judgment Debtor maintains two accounts with the 9th Garnishee. The two accounts are as follows: Account Number 4010779717 with a credit balance of N6,912,817.64 and Account Number 4010020172 with a balance of N5, 026,805.70. The Account Statements evidencing this fact is hereby attached and marked as EXHIBIT A.
(d) That further to the fact as disclosed above, the stated accounts are currently subject to and attached by the order of Mareva Injunction dated 1st November, 2011 made by Hon. Justice M.B. Idris of the Federal High Court, Lagos freezing all the bank accounts of the Judgment Debtor for the benefit of Assets Management Corporation of Nigeria (AMCON). The copy of the said order is hereby attached and marked as EXHIBIT B.
(e) That by another order by same Court on 17th November, 2014 the Court varied the initial order stated above and authorized the customer to pay in cheques, draw money up to the limit of N120 Million per month to meet the

day to day operational needs of the company only. A copy of the said order is hereby attached and marked EXHIBIT C.
(f) That on the strength of the above, the credit balances in the Judgment Debtors account with the 9th Garnishee are already attached by the subsisting orders of the Federal High Court. As the Judgment Debtor is only permitted to take from the account for a particular purpose to meeting the day to day operational needs of the Judgment Debtor (see pages 71 – 72 of Record of Appeal).
One wonders what more cause could suffice to discharge the Garnishee Order Nisi against the Appellant instead of making it Absolute on the face of the foregoing depositions showing that the Order of Mareva Injunction made by Hon. Justice M.B. Idris was still valid and subsisting at the time the lower Court made the Garnishee Nisi Absolute. The variation of the 1st order by the 2nd order of 17th November, 2011 as stated in Affidavit of show of cause, did not in any way extinguish the order of Mareva Injunction of 1/11/12 made by Justice M.B. Idris J (as he then was).
The funds in the two accounts having been attached were no longer attachable by a

garnishee order.
Thus in the case of GOV OYO STATE V AKINYEMI 2003 1 NWLR PT 800 1 C.A. 9 at p 20 paras A – B, this Court held that:
“An Order of Court subsists until set aside.”
The Garnishee Order Absolute made on the 8th of April 2016 by Hon. Justice O. A. Taiwo of High Court of Lagos State, was therefore erroneous and liable to be upturned. The sole issue has to be and is hereby resolved in favour of the Appellant against the Respondents. The appeal is audaciously meritorious and is hereby allowed.

The Garnishee Order Absolute dated 8th April 2016 made by Hon. Justice O. A. Taiwo of High Court of Lagos State is hereby set aside. In the stead thereof, the Garnishee Order Nisi made on 16th December 2015 is discharged.
The Appellant is entitled to costs of Fifty Thousand Naira (N50,000. 00) against the 1st Respondent.

PAUL OBI ELECHI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother Hussein Mukhtar JCA.
I agree with him that the Appeal be allowed and I also abide by the order as to costs
Appeal Allowed.

PATRICIA AJUMA MAHMOUD, J.C.A.: I have had the opportunity of reading in

draft the judgment of my learned brother, Hussein Mukhtar, JCA, just delivered.
I agree with him to resolve the sole issue in favour of the appellant.

His Lordship has meticulously dealt with this sole issue and I have nothing to add. I adopt his reasoning and conclusion in allowing this appeal for being meritorious. I also abide by the consequential orders made including the order as to costs. Appeal is allowed.

Appearances:

Johnson Odionu, Esq. For Appellant(s)

Okoli Uchenna Godwin, Esq. – For 1st Respondent
For Respondent(s)