African Continental Bank Plc Vs Obmiami Brick And Stone (1993)

LawGlobal-Hub Lead Judgment Report

OGUNDARE, J.S.C.

This case has a long and chequered history. This is the second time the parties will be before this Court. The applicant was at one time banker to the respondent. A dispute arose between the parties which led to the respondent suing the applicant in Suit No. E/280/87 in the Enugu Judicial Division of the High Court of the former Anambra State claiming N13 million as “special and general damages” The applicant counter-claimed for the sum of N2.276, 620.61 being overdraft granted the respondent and the compound interest at the rate of 15% per annum until judgment is given. At the conclusion of trial in the High Court, judgment was on 24/4/89 entered in favour of the respondent in the sum of N10, 827,305.25; the counter-claim was dismissed. The applicant appealed to the Court of Appeal (Enugu Division) and applied for a stay of execution of the judgment of the High Court. Stay was granted by Ononiba J. on 29/6/89 on the following terms:

“(i) The costs of N4,000.00 awarded against the applicant are to be paid to the respondent within 7 days from (29/6/89).

(ii) The judgment debt of N10,827,305.25 to be paid into a fixed deposit account in the applicant’s bank i.e. 3, Ogui Road Main Branch of A.C. B Ltd., Enugu in the name of the, respondent/judgment creditor within 30 days from (29/6/89) and at the prevailing interest rate.

(iii) The money so placed in fixed deposit is not to be withdrawn either by the plaintiff/judgment creditor or the defendant/judgment debtor until determination of the appeal now pending in this cause.

(iv) …..that the said deposit with the accrued interest shall remain with the said bank and shall abide the decision of the Court of Appeal

(v) Subject to Orders (1) – (4) above, the execution of judgment in this suit is hereby stayed.”

The applicant’s appeal to the Court of Appeal was allowed on 13/5/90 and the judgment of the trial High Court was set aside; the counter claim was put back on the cause list for trial. – see: (1990) 5NWLR (Pt. 149) 230. Respondent’s appeal to this Court was allowed in part and the judgment of the trial High Court was restored but the damages awarded by that court were reduced to N1,697,800.00; applicant’s counter claim struck out – See: (1992) 3 NWLR (Pt.229) 260.

Following the above mentioned judgment of this Court, the applicant in April 1992 instituted a fresh action against the respondent – suit No. E/125/92, in the sum of N5,642,892.07 being “the outstanding debit balance on the defendant’s current account and compound interest at the rate of 25% per annum with monthly interests from 2/4/92 until judgment and thereafter at the rate of 5% per annum until liquidation of the judgment debt and costs.” The claim was dated 21st April, 1992.

Meanwhile, however, the respondent had caused a Notice of Attachment dated 10th April, 1992 to be issued in the sum of N3,001,835.70 attaching the goods and chattels of the respondent in satisfaction of the judgment-debt in the action leading to this Court’s judgment in the earlier suit. Attachment was carried out by the High Court bailiff on 13/4/92 and an inventory of the applicant’s goods and chattels attached was taken. The applicant’s officials disputed the amount on the Notice of Attachment On 16/4/92, the Deputy Sheriff for Enugu State published a public notice (and served a copy on the applicant) of the sale, by public auction of the applicant’s attached movables. The applicant promptly filed an application in the High Court seeking the following orders:

“(1) To set aside the writ of fieri facia and or execution issued herein on the…. day of …. 1992 and directed to the Sheriff of Enugu High Court and all actions taken there under as being irregular, malicious and without reasonable cause on the ground that the sum which is by the endorsement of the said writ directed to be levied was not at the time of the issue, of the writ due and owing on the said judgment;

(2) To stay the judgment herein and or suspend execution thereof levied on 13/4/92 on the movable property of the applicant until the determination of the applicant’s claim for N5,642,892.07 against the respondent which claim is now pending in the Enugu High Court;

(3) To release from attachment the movable property of the applicant attached by the Sheriff on 13/4/92”

This latter application was, however, in a ruling dismissed by Achi-Kanu. J on 18/6/92.