Nigeria Lng Limited V. A. Obusugolu & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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.”