Ifeanyi Chukwu Okonkwo V. Central Bank Of Nigeria (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment delivered on 18th February, 2008 by Hon. Justice A. O. Fabi of the Enugu Judicial Division of the Federal High Court of Nigeria in SUIT NO: FHC/EN/CS/139/2006 – IFEANYICHUKWU OKONKWO V. CENTRAL BANK OF NIGERIA. The learned trial Judge dismissed the action for being a gross abuse of court process.

The Appellant being the Plaintiff at the Federal High Court (hereinafter simply referred to as “the lower court”) commenced an action against the Respondent herein, by Originating Summons. The question which the Appellant seeks for its determination in the originating summons reads thus:-

“In purview of Garnishee Order Nisi dated 19/5/2006 Exhibit ‘A’, the Defendant’s Affidavit dated 19/5/2006 (sic) Exhibit ‘B’, the Garnishee Order absolute dated 19/7/2006 Exhibit ‘C’, constructing them with statutory duty imposed on the Defendant Bank by the community reading of sections 83, 85, 86 & 87 of the Sheriffs and Civil process Law.

Whether the default/neglect by the Defendant Bank to pay over forthwith the sum of 22.5 million naira (sic) vide Exhibit ‘C’, whereas, no stay of Execution (sic) was granted by any court of competent jurisdiction under the provisions of the Sheriffs and Civil process Act; is not a violation of the Plaintiffs proprietary right?”

The reliefs which the Appellant claims, as set out in the originating summons are: –

“(a) An Order of Declaration that in purview of the interpretation of the Court processes (the Garnishee order Nisi Exhibit ‘A’, the Defendant’s Affidavit dated 19/6/2006 Exhibit ‘B’, Order absolute dated 19/7/2006 Exhibit ‘C’) and the legal effect of sections 83, 85, 86 & 91 of the Sheriffs and Civil process Act, the default/neglect by the Defendant Bank to pay over forthwith default/neglect by the Defendant Bank to pay over forthwith the sum of 22.5 Million Naira vide Exhibit ‘C’ without any Order of stay of execution granted by any Court of competent jurisdiction in conformance with the provisions of the Sheriffs and Civil Process Law; is a flagrant violation of the plaintiffs proprietary right to the sum of 22.5 million Naira.

(b) An Order of Declaration that the act/default of the Defendant Bank complained of, is illegal, arbitrary and unconstitutional.

(c) An Order of Declaration that pursuant to section 54 of the Evidence Act, the Garnishee Order absolute dated 19/7/2006 Exhibit ‘C’ being a final judgment is a conclusive proof as against the Defendant bank and its privies, moreso when the said Defendant never appealed against the Order absolute.

(d) An Order of Declaration that by the Defendant Bank’s Affidavit dated 19/6/2006 Exhibit ‘B’ and pursuant to section 151 of the Evidence Act, the Defendant Bank is Estopped (sic) from denying the truth of the facts deposed in their said Exhibit ‘B’, moreso, having regard to the statutory protection provided a Garnishee/Debtor in section 91 of the Sheriffs and Civil process Law 2004.

(e) An Order of Declaration that the Defendant Bank willfully and in breach of the statutory duty imposed on it failed/neglected to see that the Plaintiff will suffer damages, as a result of the tortuous act committed against the right and interest of the plaintiff (sic) entitlement of (sic) the sum of 22.5 Million Naira, money had and received by the Defendant Bank when it defaulted in carrying out the Order of the Federal high Court in the Garnishee Order dated 19/7/2006 Exhibit ‘C’ directing the Defendant Bank as the Garnishee to pay the Plaintiff (Garnishor) the sum of 22.5 million Naira forthwith.

(f) An Order of Declaration that the Defendant Bank failed/neglected to take proper or any care to determine that there is a distinction in the construction/interpretation of the meaning of “public officer” in relation with the Public officers protection (sic) Act, CAP. P.41 LFN 2004, which is square pertaining to matters of TORT and CONTRACT. In contradistinction to who is a PUBLIC

OFFICER, in conformance with section 318 (1) of the 1999 Constitution of the Federal Republic of Nigeria, the and interpretation of section 84(1)(2)(3)(a) of the Sheriffs and Civil Process Act, Cap. S. 6 vol. 14 LFN 2004.

(g) An Order of Declaration that by Exhibit ‘B’, and the legal effect of Exhibit ‘C’ the Plaintiff is entitled to claim from the Defendant Bank the sum of 22.5 million naira, money had and received by it; plus, interest at rate of 32% compound regime from 19th day of July 2006, till payment, having regard to the obvious cost of borrowing the same amount from a Commercial Bank.