United Bank For Africa V. Hon. Iboro Ekanem (Md Paragon Ent. Ltd.) & Anor (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

The 1st Respondent herein was the Plaintiff in Suit No. HU/UND.28S/200Sagainst Mkpat Enin Local Government where he obtained judgment against the Defendant and was awarded N5, 000,000.00 as damages with costs assessed at N5, 000.00. The plaintiff later applied for Garnishee proceedings against the United Bank for Africa Plc, the bankers to the judgment debtor. The Garnishee proceedings were given Suit No. HU/MISC.442/2005 wherein Mkpat Enin Local Government, the judgment debtor was joined as the 2nd respondent. An Order Nisi was granted on 19/10/2005 which was served on the UBA to appear before the High Court to show cause why the Order Nisi should not be made absolute. The garnishee did not file an Inter pleader summons so the Order Nisi was made Absolute and served on the Bank. This led to the immediate attachment of the Bank’s properties which compelled the Bank to issue a draft in the judgment sum of N5, 000,000.00 in favour of the judgment creditor. N500.00 was also paid, to the bailiffs. On the same day the judgment debtor served the Bank a Notice of Appeal and motion for stay of execution of the judgment.

Seeing the processes filed by the judgment debtor, the Bank now Garnishee/Judgment debtor filed an application on 12/12/2005 praying the lower court that value should not be given to the draft of N5 million it issued to the bailiffs pending the determination of the appeal filed by the Mkpat Enin Local Government. This prompted the 1st Respondent/Judgment Creditor to file an application on 19/12/2005 seeking the following reliefs:-

“1. That the adjudged sum of N5, 000,000.00 (Five Million Naira) property of the Judgment Creditor/Applicant still being unlawfully retained by the Garnishee/Judgment Debtor/Respondent be so kept at 10% monthly interest with effect from 8th December, 2005 when Order Absolute was made till the whole sum is fully paid.

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2. That the Garnishee/Judgment Debtor/Respondent shall pay to the Judgment Creditor/Applicant N1, 000,000.00 (One Million Naira) cost of this suit, general, special and exemplary damages of N1,000,000.00 for unlawfully reaping the fruit of the Judgment Creditor’s (sic) success and for loss of Immediate use of the money.”

On 31st May, 2006, the lower court delivered its Ruling and ordered that the money be kept with the Bank and attract interest at 10% per annum; payment of legal fees of N500, 000.00; N100,000.00 general damages to the Judgment Creditor and costs assessed at N50,000.00. Being dissatisfied with the Ruling, the Bank filed a Notice and three grounds of appeal pursuant to order of this court granted on 27/3/2007 from which the appellant formulated two issues for determination. The issues are:

1. Whether the claims/reliefs herein are such that can be commenced by Motion on Notice instead of writ of Summons.

2. Whether the Appellant can be penalized for wishing to maintain the status quo while applications were pending including two for stay of execution in pursuit of a constitutional right of appeal.

The Respondent also formulated two issues in his brief as follows:-

1. Whether the trial court was right in entertaining claims/reliefs commenced pursuance (sic) to the provisions of Civil Procedure rules.

2. Whether having regards to the provisions of the law and equity the appellant was right to retain judgment sum of which execution was completed without cost and or Interest.

Mkpat Enin Local Government neither filed a brief nor was it represented in the appeal so this appeal is between the Bank as appellant and the Judgment Creditor who is the Respondent. The Appellant filed a Reply Brief after the receipt of the Respondent’s brief.

The two issues formulated in the Appellant’s brief were argued together. Learned counsel for the appellant read Order 1 Rules 1, 2 and 3 of the Akwa Ibom State High Court (Civil Procedure) Rules and submitted that the suit/action herein cannot be commenced by Motion on Notice but by a Writ of Summons. He referred to Order 40 Rule 7, Order 53 Rules 3 and 7 and Order 47 Rule 1 and contended that those orders are not applicable in Garnishee proceedings but rather it is the Sheriff and Civil Process Act and the Judgment Enforcement Rules that apply to this type of proceedings. It is the contention of learned counsel that disobedience of court order can be remedied by contempt proceedings and Section 28 of the Sheriffs and Civil Process Act provides the penalty for obstructing the execution of judgment and this does not include filing a motion for interest and judgment which can only be asked for by filing a Writ of Summons. He maintained that there is a right of appeal against a Garnishee Order Absolute as decided in SOKOTO STATE GOVERNMENT v. KAMDAX NIG. LTD. (2004) 9 NWLR (Pt. 878) 345. He was of the view that a vital part of the Garnishee proceedings is the oral examination of the judgment debtor before or after the Order Nisi as required by Section 83 (i) of the Sheriffs and Civil Process Act. He also argued that the N5 million judgment debts was not being unlawfully retained because if a right of appeal enures to the Appellant against the Order Absolute, there is a concurrent right to apply for a stay of execution of the judgment/order. Learned counsel then chronicled the events that took place after the Order Absolute was made as follows: