NIGERIA LNG LIMITED V. A. OBUSUGOLU & ORS.
(2011)LCN/4662(CA)
In The Court of Appeal of Nigeria
On Thursday, the 30th day of June, 2011
CA/PH/232/2003
JUSTICES
M. DATTIJO MUHAMMAD (OFR) Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria
Between
NIGERIA LNG LIMITED
IN THE MATTER OF AN APPLICATION BY THE GARNISHORS FOR THE PRESERVATION OF THE SUBJECT-MATTER OF THE GARNISHEE PROCEEDINGS PENDING APPEAL.
1. A. OBUSUGOLU GARNISHORS/APPLICANTS
2. E. AMACHREE
3. T. BRAIDE
4. I. O. BRAIDE
(For themselves and as on behalf of the Omungu-Kiri Community) Appellant(s)
AND
1. A. OBUSUGOLU
2. E. AMACHREE
3. T. BRAIDE
4. I. O. BRAIDE
(For themselves and as on behalf of the Omungu-Kiri Community)
ZENITH BANK PLC GARNISHEE/RESPONDENT Respondent(s)
TUNDE O. AWOTOYE, J.C.A. (Delivering the Lead Ruling): This is the ruling in respect of the motion on notice filed by the garnishors/applicants praying as follows:
“1. An Order on ZENITH BANK PLC to pay the judgment debt plus accrued interest already attached by an order nisi in suit No FHC/PH/FJ/04/09 and now amounting to the sum of N496,786,365 (Four Hundred and Ninety Six million, Seven Hundred and Eighty Six Thousand, Three Hundred and Sixty Five Naira) into an interest yielding Account in any reputable Bank in Port Harcourt, other than Zenith Bank PLC, First Bank of Nigeria Plc, UBA plc and PHC Plc, in the name of the deputy Chief Registrar of this Honourable Court pending the final determination of this appeal and the motion filed by the appellant for stay of the garnishee proceedings pending this appeal.
2. Any Order(s) as this Honourable Court may deem fit to make in the circumstances.”
The grounds for the application are
(a) There is a pending application by the appellant to stay the garnishee proceedings pending their appeal.
(b) The funds comprising of the judgment debt and accrued interest have already been attached by an order nisi.
(c) The garnishee/respondent has already set aside the attached funds from the account of the appellant and unless they are paid into an interest yielding account they could remain idile finds to be eaten up by inflation.
The motion is supported by 8 paragraph affidavit and 16 paragraph further affidavits in support of motion and reply to the counter-affidavit of the appellant. The applicant also filed a written address.
In reaction the respondent filed 11 paragraph counter-affidavit to oppose the applicant’s motion and a further 17 paragraphs further counter-affidavit’
The garnishee/respondent also filed 8 paragraphs counter-affidavit to oppose the application and the applicant depose 6 paragraph affidavit in reply to the said counter-affidavit.
On 5/10/2010, the appellant in this appeal filed a notice of preliminary objection in objecting to the motion on notice dated 18/5/2010 and filed on 21/5/2010 by the garnishors/applicants. The grounds for the application are as follows:-
“(a) The appellant’s motion on notice dated and filed on March 1st, 2010 seeking to stay the garnishee proceedings in suit No FHC/PH/FJ/04/09 has been discontinued vide the Notice of Discontinuance dated and filed on 14th June, 2010.
(b) The Federal High Court, Port Harcourt Division did not conclude the said garnishee proceedings and therefore could not have attached a judgment debt by ex-parte Order Nisi or through on inchoate judicial process to be concluded or enforced by this Honourable Court,
(c) The Garnishee (Zenith Bank) had since 20th April, 2006 posted a Bank Guarantee for the security of the appealed judgment sum through yet to be regularized as the motion on notice filed on 15th December, 2008 seeking to regularize the said Guarantee is yet to be heard and determined by this Honourable Court.”
The appellant also filed 24 paragraph further affidavits in application to the applicant’s motion on notice filed on 21/5/2010.
In his written submission in support of the preliminary objection the appellant formulated one issue for determination to wit: whether having regard to the peculiar circumstances of this appeal, the Respondents motion on notice dated 18/5/2010 and filed 21/5/2010 is competent, a known judicial procedure and an abuse of court process?
He submitted that a court process not known to judicial procedure was null and void. He referred to the statement of Niki Tobi JSC in MOBILE PRODUCING UNLIMITED & ANOR CHIEF MONOKPO & ANOR (2003) 18 NWLR (PT. 852) page 346 at 433.
Learned counsel for the appellant submitted that there was nothing to show that the application of the applicant was first made to the trial court but refused. He referred to ORDER 7 Rule 4 of the court of Appeal Rules 2007 and stressed that the word “shall” used in the said ORDER was mandatory, He cited NATIONAL INLAND WATER WAYS V. THE GOVERNING COUNCIL OF THE INDUSTRIAL TRAINING FUND & ANOR (2008) 7 NWLR (PT.1085) pages 109 – 120.
He submitted further that this appeal did not arise from FHC/PH/FJ/04/09 and that the garnishee/respondent in the instant application had never been a party in this appeal.
Learned counsel therefore urged the court to hold that the application was incompetent for the following reasons.
(i) The motion arose from Suit No. FHC/PH/FJ/04/09.
(ii) There was not appeal against the decision in FHC/PH/FJ/04/09.
(iii) The garnishee/respondent in the instant application was not a party in Appeal No. CA/PH/232/2003.
He cited ONYEKWULUNNE V. NDULUE (1997) 7 NWLR (PT. 512) page 277.
In his reply E. B Ukiri learned counsel for the applicant submitted that the present application and the garnishee proceeding were not the same process. He asserted that the garnishee proceedings filed in the Federal High Court were for the enforcement of the money judgment entered in favour of the garnishors. He stated that it was legitimate to so do. He referred to Section 287 (3) of the Constitution and Govt. of GONGOLA STATE V. ALHAJI JOHNUR (1989) ALL NLR 647 at 655, 656 and 660. He submitted that the Garnishors relied on Exhibits C and D which imposed terms for the stay of execution but which the appellant failed to comply with.
He contended that the instant application was not an abuse of court process as the garnishee proceedings in the Federal High Court had been stayed. He submitted that the motion deals with the subject matter of the appeal and that an order could be made against anyone in custody of the subject – matter of the appeal.
He submitted further that the bank guarantee did not have the sanction of any court Order. He stated further that the mere fact that the appellant filed an application seeking to regularize their non-compliance did not mean that the Order had been granted. A process not argued, he submitted was as good as not filed. He cited OFORKIRE & ANOR. V. MADUIKE & ORS. (2003) 5 NWLR (PT. 812) page 166 at 182.
The appellant also filed written submission to oppose the application of the garnishor.
Learned counsel for the appellant Esosa Omo-Usoh formulated two issues for determination as follows:-
“(a) Whether having regard to the peculiar circumstances of this appeal this application by the Respondent was competent and not an abuse of court process?
(b) Whether the appellant had not sufficiently i complied with the conditions of the order of stay of execution granted by this court on 17/11/2003 and varied on 10/3/2004 such that this application was rendered incompetent?”
Learned counsel argument on issue (a) are substantially the same with the one in the preliminary objection.
On issue (b) he submitted that this court in its Order of 17/11/2003 and later varied on 10/3/2004 did not stipulate as a condition for the grant that the bank guarantee to be provided should contain on interest clause and also did not stipulate that that bank guarantee should be in favour of the Respondents.
He submitted further that the appellant sufficiently complied with the order of stay of execution made by this court on 17/1/2003 and later varied on 10/3/2004.
He urged the court to refuse the application.
The Garnishee/Respondent in the written address filed on its behalf by Miss Faith Giadom of Akitoye & Associates, solicitors to the Garnishee submitted that the instant application was an abuse of the process of the court. She relied on SENATOR MAMAN ALI V. SENATOR AUBISHIR & 3 ORS (2008) 3 NWLR (PT. 1073) 94 at 103, she stated that the lower court was still seised of the matter and had not made an order absolute. She submitted that the applicant ought to have appealed against the decision of the lower court instead of filing this application. He cited DAPIANLONG & 5 ORS V. DARIYE &ANOR (2007) 8 NWLR (PT. 1036) 239 at 259.
He urged the court to dismiss the application.
I have carefully considered the submissions of learned counsel for the parties in this application.
The facts of this case are simple.
The Respondents had obtained a default judgment from the High Court of Rivers State on 15/5/2000 in Suit No. PHC 998197. This is the case now on appeal before this court.
It was the appellant that filed an application for stay of execution of the ‘said default judgment pending the determination of the appeal. The High Court granted a conditional stay which was not satisfactory to the appellant. The appellant consequently filed another application before this court for a stay of execution of the said judgment or a variation of the earlier order of the trial court. The application was granted by this court on 17/11/2003 and again varied by this court on 10/3/2004. The court further directed that All States Trust Bank be substituted in place of Equitorial Trust Bank Limited and that the Bank guarantee should be provided within 14 days.
When All State Trust Bank became insolvent the appellant provided a bank guarantee of Zenith Bank PLC.
Appellant subsequently filed an application seeking for retrospective approval of the bank guarantee provided. The application is still pending before the court.
While this was on, the Respondents commenced garnishee proceedings and obtained ORDER NISI on 11/2/2010 at the Federal High Court Port Harcourt. In view of this appeal the Federal High court stayed further proceedings in the garnishee proceedings. The Respondents again filed this application while the other processes were on at the Federal High Court.
Does this constitute an abuse of court process?
Niki Tobi JSC in AFRICAN REINSURANCE CORP. v. JDP CONS. LTD (2003) 13 NSCQR 226 at 248 explained what constitutes an abuse of court process thus:
“Abuse of court process is a term generally applied to a proceedings which is wanting in bona fide and is frivolous, vexations or oppressive’ Abuse of process can also mean abuse of legal procedure or improper use of legal process as in this case. An abuse of court process always involves some bias, malice, same deliberativeness’ some desire to misuse or pervert the system” I shall view this application in the above light. It is not in doubt that this Court made an earlier order on 17/11/2003 which was varied on 10/3/2004, the order is a stay of execution of the judgment now on appeal before this court. There is also an application pending before this court praying for retrospective approval or leave of this court in respect of the bank guarantee deposited by the appellant, which is that of Zenith Bank PLC as opposed to that of All States Trust Bank which was ordered by this court having regard to the insolvency of All State Trust Bank.
What brought about the instant application is contained in paragraph 5 of the supporting affidavit to the motion on notice it reads:
“That the Applicants informed me at 2pm in our office on 14th May, 2010 and I verily believe them that they would feel safer if the funds are lodged with any reputable Bank in Port Harcourt except First Bank Plc, UBA Plc, Zenith Bank Plc, PHB Plc in the name of the Deputy Chief Registrar of this Honourable Court pending the determination of the Appellant’s purported appeal and motion. The aforementioned Banks are Bankers to the Judgment Debtor and, therefore, loyal to it”
The applicant in other words is not opposed to the stay of execution earlier granted but seeks a variation of the order earlier granted on 10/3/2004 by
(i) Ordering instead a deposit of a bank guarantee, the payment of the judgment debt into an interest yielding account in any reputable bank in Port Harcourt other than Zenith Bank PLC, First Bank of Nigeria PLC.
The extant order of this court on this matter is the one made on 10/3/2004 which ordered All States Trust Bank PLC to provide bank guarantee for the conditional stay of execution. But All State Trust Bank PLC is now insolvent. Hence, obviously there is need to vary the order of court of 10/3/2004.
The insolvency of All State trust Bank caused the appellant to file the motion on Notice filed on 11/11/2005, which clearly is the answer to the problem created by the insolvency of All States Trust Bank because it seeks to address the wrong.
The insolvency of All States Trust Bank PLC did not vitiate the order of this court of 10/3/2004 but it rendered it impotent and impracticable. The order of the Court is however still extant and needs to be discharged or varied.
The filing of the motion on notice of the garnishor/applicants on 21/5/2010 is therefore in my respectful view unnecessary for the following reasons:-
(i) It competes with the extant motion on notice filed on 11/11/2005 which is yet to be determined.
(ii) It does not address the wrong created by the insolvency of All States Trust Bank PLC.
(iii) It is a direct attack on the orders of this court made on 17/11/2003 and varied on 10/3/2004. These orders were made in the presence of the garnishor/applicants learned counsel E. B. Ukiri, being physically in court to represent the Garnishors on both days. The applicants never filed any application seeking to vary the orders if indeed any error was discovered by the applicants.
(iv) This application is seeking an order against a bank which is not a party to this appeal who is described as a garnishee.
The applicant also described themselves as garnishor. It needs be noted that this is not an appeal in respect of a garnishee proceeding. The power of the Court of Appeal to grant stay of execution is derived from section 17 of the Court of Appeal Act which reads:-
“17. Stay of execution
An appeal under this Part of this shall operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.”
An order of stay of execution of an appeal is an off-shoot of the appeal itself. The Court of Appeal Act and its Rules do not envisage a situation where a stranger to the original action is joined in an appeal or an application in respect thereof. Parties to an appeal or in respect of related applications must be parties directly affected by the appeal or who can be described as interested parties under section 243 of the 1999 constitution. Zenith Bank PLC clearly does not fall into the two categories.
(v) The applicants have filed too many applications on the enforcement of the judgment subject of this appeal in different courts. These are listed and exhibited in paragraph 8 of appellant/respondents further and better counter-affidavit filed on 14/2/2011. This in itself constitutes an abuse of court process. See OGOEJEOFOR V. OGOEJEOFOR (2006) 3 NWLR (PT. 966) 205.
At this stage I have deeply considered the application of the respondents for leave to file further and better counter-affidavit to the Respondents motion on notice dated 18/5/2010 and to deem the filed further and better counter-affidavit as properly filed. I am convinced it is in the interest of justice to grant the said application and it is accordingly granted.
In the final analysis I hold that the Respondent/Applicants application an abuse of court process and this court will not allow it. See SARAKU V. KOTOYE (1992) 11/12 SCNJ.
I accordingly dismiss this application with N20,000.00 costs in favour of the Appellant Respondent.
M. DATTIJO MUHAMMAD, J.C.A. (OFR): I read in draft the lead ruling of my learned brother Awotoye JCA, and agree with him that the application lacks merit and should be dismissed. I, on the basis of the reasons advanced in the lead ruling, dismiss the application also.
I abide by the order of cost made in the lead ruling.
EJEMBI EKO, J.C.A.: I had the privilege of reading in draft the Ruling just delivered by my learned brother T.O. AWOTOYE JCA in the application filed on 21st May, 2010. The facts of this application are well set out in the said Ruling. The application has been brought in pursuance of an appeal already entered in this court. Order 7 Rule 4 of this Court is now therefore irrelevant.
From “the grounds for this application” the fear of the applicant is that since the Garnishee/Respondent has already set aside the funds from the account of the Appellant – unless (the funds) are paid into an interest yielding account they would remain idle funds to be eaten up by inflation.
In otherwords, what the application seeks to attain is insurance or assurance that the funds “already set aside from the Account of the Appellant” are paid into an escrow account or an interest yielding account’ as could be seen from paragraph 5 of the supporting affidavit, the Judgment creditors/Applicants entertain genuine distrust of the Garnishee/Respondent who they say is “loyal” to the Judgment Debtor/Appellant. The intendment or purport of this application in my humble view is that the funds would not be idle. This I think is in the interest of all concerned. There is some business or commercial sense in this. At the end of the day the Garnishee/Respondent, having already set aside the attached funds from the account of the Appellant should not be allowed to trade with the money or the said funds without accounting to either the Appellant or the Applicants for the profits or interests the Garnishee/Respondent may earn from such trading.
This application in my view is intended to prevent unjust enrichment to the Garnishee/Respondent at the expense, or to the prejudice, of either the judgment creditor or the judgment debtor. The funds in dispute are not funds belonging to the Garnishee/Respondent who is a mere custodian. The owners of the disputed funds are, actually, either the Appellant/Judgment Debtor or the Judgment Creditors, who are the respondents in the substantive appeal. The outcome of the appeal would determine which of the parties to the substantive appeal would eventually be entitled to the funds allegedly “already set aside from the Account” of the Appellant. In my considered view, there is substance in this application. It advances the interest of justice to either of the parties to the substantive appeal, just as it is also intended to prevent unjust enrichment to the Garnishee/Respondent. The application is intended to enhance or add commercial value to the disputed funds, having already been set aside from the funds of the Appellant, so that they are not left idle without interests thereon. The Garnishee/Respondent admits that it has already set aside the judgment debt from the Account of the Appellant. It is however silent on whether the said funds set aside attract any interests thereon
I therefore, allow the application and make the order in terms of the relief therein. The judgment debt plus accrued interest already attached by an order nisi in suit no FHC/PH/FJ/04/09 and now amounting to the sum of N496,786,365.00 shall be paid, within 21 days from today, into an interest yielding account in any reputable bank in Port Harcourt, other than Zenith Bank PLC, First Bank of Nigeria PLC, UBA PLC and Bank PHC PLC in the name of the Deputy Chief Registrar of this Court pending the final determination of this appeal and the motion filed by the Appellant for stay of garnishee proceedings pending this appeal.
Parties shall bear their respective costs.
Appearances
H. C. Chibor;For Appellant
AND
E.B. Ukiri;
G. Ukiri (Mrs.);
Omonigho Iyayi (Miss),
F.C. Giadeon (Mrs.) and
E. G. Kamanu (Mrs.)For Respondent
