Nigeria Deposit Insurance Corporation V. Sylvanus Ifediegwu & Ors (2002)

LawGlobal-Hub Lead Judgment Report

MUHAMMAD,J.C.A.

This is an appeal against the garnishee order nisi decreed by Hon. Justice A. O. Ajakaiye of the Federal High Court, Enugu on 28/5/2001, in favour of Sylvanus Ifediegwu the garnishor thereat and the 1st respondent before us. By the said order, the appellant’s (i.e. Nigeria Deposit Insurance Corporation’s) money to the tune of (N18,810,000.00k) Eighteen million, eight hundred and ten thousand naira in the possession of the Central Bank of Nigeria, the 2nd respondent in the appeal, was attached.

The need to understand the issues raised by the instant appeal necessitates stating in some details the facts from which the appeal evolved. These facts are hereunder supplied.

On 30th January, 1998, the Co-operative and Commerce Bank of Nigeria, Plc applied for and took out a writ to wind-up its affairs through proceedings at the lower court pursuant to the provisions of Companies and Allied Matters Act, 1990, as amended by S. 38 of the Banks and Other Financial Institutions Decree, 1991.

In furtherance of the writ so taken out, by a motion ex-parte dated the 30/1/98 as well, the applicant/petitioner sought and obtained the leave of the lower court on 9/2/98 to advertise the winding-up petition as filed in the official gazette of the Federal Republic of Nigeria and one National Daily Newspapers circulating in Enugu State.

Pursuant to the leave of court, publication of the fact of the wind-up petition was undertaken in the specified media. Apparently from the publication, solicitors to the garnishor/1st respondent wrote letter contained at p.22 of the record of appeal dated 3/3/98 to the lower court stating in part as follows:-

“It has been brought to our attention that the above winding-up petition is pending in your court. We hereby apply for a certified true copy of the petition in the above suit to enable us join the proceedings as creditors of the petitioner/applicant.”

The garnishor/1st respondent’s notice of intention to appeal on and support the petition of the Co-operative and Commerce Bank of Nigeria Plc hereinafter to be called petitioner and/or applicant, was filed on 10/3/98. In the said notice the garnishor/1st respondent indicated his being a creditor of the petitioner/applicant to the tune of N18,810,000.00k. At the hearing of the petition, the garnishor/1st respondent remained the only purported creditor.

The lower court’s order pursuant to the petition proceedings spans pp. 29-30 of the record of appeal and of significance is p.30 a portion of which is hereunder reproduced:-

“And after hearing S. B. Monokpo, Esq. of counsel for the petitioner addressing the court on the facts of the petition.

And Igboekwe, Esq. of counsel for the creditor, Mr. Sylvanus E. Ifediegwu, in support of the petition.

And the court having considered the advertised petition, granted same this 12th day of March, 1998.

The court doth ordered that the Co-operative and Commerce Bank (Nig.) Plc, be and is hereby wound-up in accordance with the provisions of the Companies and Allied Matters Act, 1990 and the Bank and Other Financial Institutions Decree, 1991 (BOFID). It is further ordered that the interest of Mr. Sylvanus Ifediegwu be taken into account in the final winding-up exercise.

That the Nigeria Deposit Insurance Corporation be and is hereby appointed the provisional liquidator of the said Co-operative and Commerce Bank of Nigeria Plc.