Oboh & Anor V. Nigeria Football League Ltd & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C. 

On 9th July, 2013, at the suit of the named Appellants (as Claimants) at the High Court of Lagos State (Coram: O. A. Adefope-Okojie, J) “judgment as per the award of the Tax Master given on 28th September, 2012 in the sum of Two Hundred and Thirty-Three Million, Nine Hundred and Fifteen Thousand, Six Hundred and Forty Four Naira (N233,915,644.00) (was entered) in favour of the Claimants” and against the sole defendant, NIGERIA FOOTBALL LEAGUE LIMITED, at the said trial Court.

The records show that, on the said 9th July, 2013, the defendant (now the 1st Respondent in this appeal) was represented by a Counsel, Emmanuel Ochokwunu. The award of the Chief Registrar/Tax Master, affirmed and incorporated into the final decision on the 9th July, 2013 by the trial Court (O. A. Adefope- Okojie, J. (as she then was)] was made on 28th September, 2012.

The Appellants, as judgment creditors, in exercise of their rights and powers under Section 287(3) of the Constitution, providing inter alia that the decision of a High Court shall be enforced in any part of the Federation by all authorities and persons and the Court itself, proceeded by way of garnishee proceedings at the trial High Court to enforce the judgment dated 9th July, 2013. They proceeded against the League Management Company Limited and First Bank of Nigeria Plc, respectively the 2nd and 3rd Respondents in this appeal, as Garnishees. On 18th July, 2013, the trial High Court (G. N. Onyeabo, J.) granted “the garnishee order nisi against the garnishees attaching the sum owing in satisfaction of the judgment entered on 9th July, 2013 in favour of the judgment creditors”. G. N. Onyeabo J. further ordered that at the garnishees shall enter appearances within fourteen (14) days and shall file an affidavit to show cause why the order nisi should not be made absolute, attaching as exhibits – copies of the Statement of Account of the Judgment Debtor held by them”. G. N. Onyeabo, J. further ordered “the garnishees or their representatives shall also appear on the return date here fixed for 8th August, 2013 …”

The 2nd Respondent, as the 1st Garnishee, filed its affidavit to show cause on 7th August, 2013. In paragraph 25 of the affidavit, the 1st Garnishee denied being “indebted to the Judgment Debtor in the sum of N232,912,644.00 (Two Hundred and Thirty-Two Million, Nine Hundred and Twelve Thousand, Six Hundred and Forty-Four Naira) or in any other sum whatsoever and is neither charged with collecting nor is it the custodian of the Defendant/Judgment Debtor for the collection of all or any revenue accruing to the Defendant/Judgment Debtor”. In paragraph 6 of the said affidavit to show cause the 1st Garnishee had also averred:

6. That I know as a fact and can positively confirm that the Defendant/Judgment Debtor, now defunct, was declared illegal and void by the Honourable Justice D. U. Okorowo of the Federal High Court sitting in Abuja on 20th January, 2012 and was ordered to be wound up by the Corporate Affairs Commission in suit no. FHC/ABJ/CS/179/2010. Attached herewith and marked as Exhibit A is a Certified True Copy of the Enrolled Judgment Order of the Federal High Court.

The 2nd Garnishee Bank, on its part, had averred, in its affidavit to show cause, “that upon receipt of the said Order Nisi, the bank conducted a search on its data base to confirm whether the Judgment Debtor maintains any account with the bank”, and it discovered that the Judgment Debtor does not maintain any account with the 2nd Garnishee and further “that the 2nd Garnishee having no fund belonging to the Judgment Debtor to satisfy the judgment sum should be discharged”. The 2nd Garnishee did not furnish the Statement of Account of the 1st Garnishee, nor any further details from its data bank. This prompted the Judgment Creditors/Garnishers to file Further Affidavit in reply to the 2nd Garnishee wherein it is averred that “the 2nd Garnishee has funds of the 1st Garnishee sufficient to satisfy the judgment debt in whole or in part and has purportedly (sic: purposefully) allowed the 1st Garnishee withdraw same”. At the time the Garnishee order nisi was made the Judgment Creditors/Appellants had satisfied the trial Court (Onyeabo. J) that the 2nd Garnishee was warehousing N500,000,000.00 funds of the 1st Garnishee in the account No. 202318545.

​

The Judgment Debtor’s Counter Affidavit of 22nd August, 2013 appears to suggest that, on 18th July, 2013, it appealed the decision of the trial High Court affirming its liability to pay the adjudged Judgment Debt. The Notice of Appeal and the proposed Amended Notice of Appeal (dated 4th October 2013) were exhibited in the affidavit in support of the motion filed on 4th October, 2013 at the Court of Appeal to show its pending appeal against the decision of 9th July, 2013. The allegedly defunct 1st Respondent, notwithstanding the decision/order of the Federal High Court in suit no. FHC/ABJ/179/2010, continued thereafter to remain active in business.

In the meantime O. A. Adefope-Okojie, J (as she then was), whose judgment was being enforced, heard the application for garnishee order absolute. On 21st January, 2014, she rendered her ruling, the subject of this appeal. Adefope-Okojie, J, in the said ruling seemed to have imposed on herself the burden and function of reviewing, renouncing, reneging and negating her decision of 9th July, 2013. In her ruling on the application for garnishee order absolute, Adefope-Okojie, J, had therein inter alia considered the Memorandum of Understanding on which the cause of action of the Claimants/Judgment Creditors (now the Appellants) was predicated. She found at page 447 of the record, among others, that “The Judgment Debtor, Nigeria Football League, I note, is not a party or a signatory to this agreement” and that “in addition, by the terms of this Memorandum, it is the League Management Company Limited that a Licence is given to administer football ‘together with all rights appertaining to the Nigeria Premier League’ “on this, she concluded that she was hesitant, in the circumstances, to “hold the 1st Garnishee bound to the Memorandum of Understanding to which it was not a party”. Further in the same ruling, Adefope- Okojie, J observed that Okorowo, J of the Federal High Court in the suit no. FHC/ABJ/CS/179/2010 had on 20th January, 2012 declared that the incorporation of the Nigeria Football League Limited, the Defendant/Respondent, “illegal and void – and also that (it) cannot administer football in all its ramifications”. It was on these bases that she declared/ruled that “an order absolute, as requested, cannot be made in the circumstances disclosed above”. She accordingly discharged the order nisi made by Onyeabo, J on 18th July, 2013.

The Court of Appeal (the lower Court) affirmed the decision of the trial Court (Adefope-Okojie, J) hence this further appeal. The main point of the lower Court’s decision is that the order nisi made by Onyeabo, J on 8th July, 2013 was literally unenforceable by the non-existence of the Defendant/Judgment Debtor, the 1st Respondent herein, and that it (the lower Court) “is reluctant to make pronouncement against non-existent and non-juristic personalities”. Against the decision the Appellants filed their Notice of Appeal on 4th August, 2016, containing 5 grounds of appeal and an amended Notice of Appeal containing 6 grounds of appeal dated 24th February, 2020, but deemed filed on 22nd September, 2020, was subsequently filed upon leave of Court.

Ordinarily, an amended notice of appeal completely obliterates the original notice of appeal amended. It no longer avails the appellant either to formulate his issues for the determination of the appeal therefrom or to argue his appeal on the original notice amended.

The 3rd Respondent’s Notice of Preliminary Objection filed on 14th October, 2020 is predicated on two grounds, namely: that the appeal is incompetent because (i.) it was initiated jointly by a non-juristic person, that is the 2nd Appellant, Emman I. Oboh & Associates, a person unknown to law; and (ii.) the issue formulated and argued in the Appellants’ brief are predicated on two Notices of Appeal – the original Notice of Appeal and the Amended Notice of Appeal.

I agree with the 3rd Respondent that it is the law that an appellant cannot rely on and argue his appeal on more than one notice of appeal because an issue in an appeal cannot be determined on two separate filed notices of appeal. CHUKWU v. THE STATE (2007) All FWLR 1224 at 1240. It also the law that a withdrawn notice of appeal is taken as abandoned.

Upon amendment of the notice of appeal upon leave of Court, the amendment goes to the roots and the amended notice of appeal, superseding the original notice of appeal, has the effect of completely obliterating the original notice of appeal which is taken to have been abandoned. Technically, it no longer avails the appellant to rely on the original notice of appeal, it having been amended and deemed abandoned.

​

Equity follows the law and does always look at the substance and not the form. The 3rd Respondent on this point of his preliminary objection appears to be blighted by the form, and not the substance. Upon my careful perusal of grounds 1, 2, 3 & 6 of the Amended Notice of Appeal they appear to be substantially the replication of grounds 1, 2 & 3 of the original notice of appeal, grounds 4 in the original notice of appeal and the amended notice of appeal and the amended notice of appeal are identical. Similarly, ground 5 in the original notice of appeal was replicated, in ground 5 of the amended notice of appeal. The two grounds are identical. I do not, therefore, think that the respondents in the appeal have been misled, embarrassed or in any way prejudged by the Appellants merely indicating that their issue 1 has been formulated from original grounds 1, 2 & 3 as well as grounds 1, 2, 3 & 6 in the Amended Notice of Appeal. The Respondents similarly are not misled and prejudiced by the Appellants indicating that issues 2 & 3 are issues the subject of identical grounds 4 & 5 in both the original notice of appeal and the Amended Notice of Appeal respectively. Therefore, using blue pencil rule to discountenance, references, in the Appellants’ issues for determination of the appeal in their brief, to grounds 1, 2, 3, 4 & 5 in the original notice of appeal filed on 9th August, 2016 will, in the peculiar facts of this case, meet the ends of substantial justice. Courts these days strive to doing substantial justice as they now turn away from arcane technicality.

The remaining point or ground for the 3rd Respondent’s preliminary objection: that the 2nd Appellant, being a non-juristic persona cannot jointly initiate this appeal with the 1st Appellant. The contention is roundly defeated by Order 2 Rule 8 of the extant Rules of this Court, enjoining inter alia that Notices of Appeal and other processes prepared in pursuance of the appellate jurisdiction of this Court for filing in accordance with the said rules, shall reflect the same title as that which obtained at the trial Court.

There is no evidence, from the records, that any objection was raised at the lower Court, to the competence of the 2nd Appellant commencing the suit, the substance of this appeal, severally and/or jointly with the 1st Appellant. The 3rd Respondent, as the 2nd Garnishee, did not also raise this objection at the trial Court. He has the right in law to raise the objection, just as he could also compromise it or waive it. See ARIORI v. ELEMO (1983) LPELR – 552 (SC). In LION OF AFRICA INSURANCE CO. LTD v. ESAN (1999) 8 NWLR (pt. 614) 197, the objection that “Mr. & Mrs. Esan” was not a juristic persona was raised timeously at the trial Court, and not at the appellate Court for the first time as a ground of appeal.

The issue: whether “Emman I. Oboh & Associate” is, or is not, a juristic persona is one of facts. He who asserts must prove that the fact, as asserted, exists in order to be entitled to judgment on the facts asserted: Sections 131 & 132 Evidence Act, 2011. The fact that “Emman I. Oboh & Associates” is not, allegedly, a juristic persona is not one established by mere hunch or intuition of the objector. It must be established by empirical evidence. This is what distinguishes this case from, and renders irrelevant and inapposite MAERSK LINE v. ADDIDE INVESTMENT LTD. (2002) 1 NWLR (pt. 778) 317; SLB CONSORTIUM LTD v. NNPC (2011) 9 NWLR (pt. 1252) 317 to the preliminary objection of the 3rd Respondent, which objection is hereby overruled in its entirety.

The 1st Respondent (the allegedly defunct persona) has its own preliminary objection and is founded on the grounds that –

1. Grounds 1 & 3 of the Notice of Appeal are one and the same.
2. Grounds 2 and 6 of the Notice of Appeal are one and the same.
3. Some particulars in support of Grounds 1, 2, 5 and 6 of the Notice of Appeal are not related to the said Grounds; and
4. Issues 1 and 3 formulated by the Appellants are liable to be struck out having been formulated from incompetent grounds of appeal.

The 1st Respondent, not contesting the competence of ground 4 and issue 2 formulated therefrom, by the Appellants appears to concede that the said ground 4 and issue 2 raised therefrom for the determination of the appeal support the appeal. Since the appeal can be heard and determined on ground 4 and Issue 2 therefrom, what the 1st Respondent purports to be a preliminary objection to the hearing of the appeal, under Order 2 Rule 9 of the extant Rules of this Court, does not in actuality constitute or amount to preliminary objection. The main and the only purpose of a preliminary objection is scuttling the hearing of the appeal in limine. See OBASI v. MIKSON ESTABLISHMENT INDUSTRIES LTD (2016) LPELR – 40704 (SC); GALADIMA v. TAMBAI & ORS. (2000) LPELR – 1302 (SC). I will therefore discountenance this purported preliminary objection, which actually is not a preliminary objection within the meaning and context of Order 2 Rule 9(1) of the extant rules of this Court. Even on the merits, it is clearly frivolous.

My Lords, the Appellants’ three issues for the determination of this appeal read thus, that is –

1. Whether the Court of Appeal was right when they relied on the judgment in FHC/ABJ/CS/179/2010 of Honourable Justice D. U. Okorowo to hold that the 2nd and 3rd Respondents (League Management Company Limited and First Bank of Nigeria Plc) garnishees are not liable to comply with the order nisi because the 1st Respondent (Nigeria Football League Limited) judgment has ceased to exist in the eyes of the law?
2. Whether the learned Justices of the Court of Appeal were right when they held that the power to lift the corporate veil of a company belong to the exclusive jurisdiction of the Federal High Court?
3. Whether the learned Justices of the Court of Appeal were right when they held that the money judgment in this appeal can only be enforced by means of an action for winding up of the Judgment Debtor and not by garnishee proceedings? The totality of these three issues for the determination of the appeal, as formulated by the appeals, is whether the lower Court was right in affirming the decision of Adefope-Okejie, J refusing to enforce her own judgment which determined the liability of the 1st Respondent to pay contractual debt in favour of the Appellants. It is not in any doubt that on 9th July, 2013, the trial High Court (Adefope-Okejie, J) entered judgment against the 1st Respondent in the sum of N232,915,644.00 in favour of the Appellants. The judgment subsists and remains binding on the parties until set aside; and it took immediate effect from the date it was pronounced. Section 287(3) of the Constitution enjoins the said trial Court to enforce its own judgment.

Garnishee proceedings, according to Akintan, JSC in UNION BANK OF NIGERIA PLC v. BONEY MARCUS INDUSTRIES LTD (2005) 13 NWLR (pt. 943) 654 at 666, are a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. It is a specie of execution of adjudged debt for which ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the judgment creditor the debt due or accruing from him to the judgment debtor, as much of it as may be sufficient to satisfy the amount of judgment and the costs of the garnishee proceedings.

The judgment creditor first makes the application to the Court for garnishee proceedings. The order of Court then comes in two stages. The first is garnishee order nisi which directs the garnishee to pay the sum covered by the application either to the Court or the judgment creditor within a stated time unless the party (the garnishee), against whom the order is made, shows good cause why the payment should be made. If no sufficient good cause is shown the Court then makes the garnishee order absolute directing the third party (the garnishee) to pay over the amount specified to the judgment creditor or to the Court, whichever is more appropriate. See CHOICE INVESTMENTS LTD v. JEROMNIMON (1981) QB 149 at 154 – 155; UNION BANK PLC v. BONEY MARCUS INDUSTRIES LTD (supra). At the stage of garnishee order nisi the amount standing to the credit of the judgment debtor in the hands of the third party (the garnishee) is, or has been, attached, that is garnished. In SOKOTO STATE GOVERNMENT v. KAMDAX NIG. LTD. (2004) 9 NWLR (pt. 878) 345 at 380, it was stated:

“Where the judgment creditor has garnished the debt standing to the credit of the judgment debtor in the hands of the garnishee, upon service of the order nisi from the Court, the garnishee becomes a custodian of the whole of the judgment debtor’s funds attached.”

See also AZUBUIKE v. DIAMOND BANK PLC (2014) 3 NWLR (pt. 1394) 116 (CA).

In making the order nisi, the trial Court exercises its undoubted judicial discretion – judicially and judiciously.

When the trial Court (per Onyeabo, J) made the garnishee order nisi upon the affidavit (Form 25) of Oyetuga Olugbenga Joseph (on behalf of the Judgment Creditors) filed on 16th July, 2013, I should take it, on the presumption of regularity (Section 168(1) of Evidence Act, 2011), that the trial Court (Onyeabo, J.) made the order nisi having been satisfied by the averments that the amounts of the debts due and owing or accruing for the 1st garnishee to the Judgment Debtor are lodged in bank accounts, one of which is with the 2nd Garnishee” and “that the 2nd Garnishee, First Bank Plc of No. 35, Marina Lagos State are bankers to the 1st Garnishee who maintains Accounts No. 2023185845 at 2nd Garnishee’s Central Business District Abuja Branch where the title sponsorship fees to the tune of over N500,000,000 accruing to the Judgment Debtor in respect of the 2012/2013 Nigeria Premier Football League season – was deposited” and further “that the said account is still in credit to the tune of about N160,000,000.00. On 18th July, 2013 Onyeabo, J made Order Nisi against both “garnishees attaching the sum in satisfaction of the judgment entered on 9th July, 2013 in favour of the Judgment Creditor. The 2nd Garnishee, the 3rd Respondent, had been consistently dubious and dodgy on the fact averred, and accepted by Onyeabo, J, that at the time the order nisi was made it had in favour of the 1st Garnishee N500,000,000.00 lodged with it. Adefope-Okojie, J did not address the fact like the lower Court.

​

I do not think any power or jurisdiction enures to the Court before which application for garnishee absolute is pending to constitute itself into an appellate Court to review the money judgment being enforced. Both Onyeabo, J who made the order nisi and Adefope-Okojie, J who entered the judgment being enforced and who refused the order absolute were all Judges of Lagos State High Court exercising co-ordinate jurisdiction. Adefope-Okojie, J was, of course, functus officio and totally lacked any power or jurisdiction to review the final judgment she delivered on 9th July, 2013 and rendering it unenforceable upon any fresh evidence, albeit extraneous facts, not available to her on or before 9th July, 2013 under the guise of exercising the judicial discretion to grant or not to grant the garnishee order absolutely sought. My firm view of the ruling of Adefope-Okojie, J at pages 443 – 448 of the record is that the learned trial judge had erroneously arrogated to her Court appellate jurisdiction to review the judgment entered on 9th July, 2013. The power or function of the trial Court at this stage is neither to conduct a fresh trial nor appellate hearing to the review the judgment being enforced to see whether it was rightly or wrongly decided and therefore enforceable or not enforceable. Section 287(3) of the Constitution makes it mandatory that the final decision of the High Court subsisting and not set aside by a Court of competent jurisdiction, shall be enforced by all authorities and persons, and by the Court itself or by Court of subordinate jurisdiction. The appellate jurisdiction conferred on the Court of Appeal by Section 241(1) of the Constitution to review final decisions of the High Court is not there to be whimsically usurped by the High Court under the guise of judgment enforcement proceedings.

The lower Court, at page 543 of the records, did not seem to be in full and firm grip of the issue before it when it held-

Therefore, the garnishee order nisi made by the (Lagos) State High Court presided by Honourable Justice G. N. Onyeabo on the 18th July, 2013 was literally unenforceable by virtue of the non-existence of the 1st Respondent, the reason for this suit. The trial Court presided by Honourable O. A. Adefope-Okojie was thus right when on 21st January, 2014, it refused to grant garnishee order absolute but instead discharged the order nisi against the 1st Respondent. This is simply because Courts only make enforceable orders and do not act in vain. Making an order whose enforcement cannot be secured amount to acting in vain.

By this dictum the lower Court has validated the act of the trial Court (Adefope-Okojie, J) revisiting and reviewing its final decision rendered on 9th July, 2013 subsequently on 21st January, 2014 and coming to its decision not to enforce its earlier final judgment upon finding the 1st Respondent liable to pay the Appellants adjudged contract sum. It predicated its decision of 21st January, 2014 on the facts that the judgment Debtor (1st Respondent at the lower Court and here) was not a party to the Memorandum of Understanding between the League Management Limited Globacom and Total Productions Ltd, that it would not “hold the 1st Garnishee bound to a memorandum of understanding to which it was not a party” and that Okorowo, J of the Federal High Court in the suit No, FHC/ABJ/CS/179/2010 had on 20th January, 2010 had declared the incorporation of the 1st Defendant/1st Respondent, the Judgment Debtor illegal and void. This decision refusing to make garnishee order absolute has no doubt been actuated overwhelmingly by matters extraneous to the final money judgment being enforced.

The lower Court had confused itself on the status of the 1st Respondent, the Judgment Debtor. It erroneously held it out as a garnishee against whom an order nisi was made. The 1st Respondent is the principal judgment debtor, and not a garnishee against whom an order nisi was made. This error has the fundamental effect on its affirming that the decision of Okorowo, J in FHC/ABJ/CS/179/2010 had declared its incorporation as illegal and void.

The only issue in the proceedings for garnishee absolute is whether the sum indebted to the judgment debtor found prima facie to be held by the garnishee, which sums in the order nisi had been already attached by Court order, should be finally paid over to the Judgment Creditor. The indebtedness of the judgment debtor to the judgment creditor is no longer an issue like the judgment debtor’s capacity to be sued for owing the adjudged debt.

So much fuss was made, in the ruling declining to make absolute the order nisi and the lower Court’s decision affirming the said ruling, about the juristic personality of the 1st Respondent, the Judgment Debtor. The final decision of the trial High Court (Adefope-Okojie, J) dated 9th July, 2013 has not been set aside, notwithstanding the hyped principle (on the authority of REGISTERED TRUSTEES OF THE AIRLINE OPERATORS v. NAMA (2014) LPELR 22372 (SC) NIGERIAN NURSES ASSOCIATION v. A.G. FEDERATION (1981) 11 – 12 SC; ADMINISTRATORS/EXECUTORS, ESTATE OF ABACHA v. EKE-SPIFF (2009) LPELR – 3152; UNITED TIPPER DRIVERS ASSOCIATION v. REGISTERED TRUSTEES OF RCCG & ANOR (2016) LPELR – 40161 (CA), etc) that a non-juristic personality cannot be sued nor can it sue. The 1st Respondent, Judgment Debtor, was not directly and personally a party in the garnishee action.

The law still remains that the trial High Court (Adefope-Okojie, J) having on 9th July, 2013 delivered its final judgment was functus officio and was totally bereft of any competence or authority in law to revisit it and render the said judgment nugatory and unenforceable in disobedience of Sections 241 and 287(3) of the Constitution. The decision of the trial High Court affirmed by the lower Court, now the subject of this appeal runs as counter-force against the authoritatively established judicial precedent on the principle when a judgment or Court becomes functus officio upon its judicial duty or function wholly accomplished and thereby lacking further judicial authority or legal competence to revisit and review same, not being an appellate body over its own final decision. There is no dearth of binding authorities on this. They include ALOR & ANOR v. CHRISTOPHER NGENE & ORS (2007) 17 NWLR (pt. 1062) 163; DINGYADI & ANOR v. INEC (2011) LPELR – 950 (SC); UKACHUKWU v. UBA (2005) 18 NWLR (pt. 956) 1; ANYAEGBUNAM v. AG, ANAMBRA STATE (2001) 6 NWLR (pt. 710) 532; MOHAMMED v. HUSSEINI (1998) 14 NWLR (pt. 584) 108.

The Respondents, particularly the Garnishees in collaboration with the Judgment Debtor, have profusely harped on the alleged non-juristic personality of the 1st Respondent, the Judgment Debtor, to avoid enforcement. The two Courts below have unfortunately fallen into the snare, a fraudulently contrived artifice designed to render the final decision of the trial High Court (Adefope-Okojie, J) nugatory and unenforceable. The very adumbrated judgment of Okorowo, J in FCH/ABJ/CS.179/2010, claimed by the Respondents to have declared the incorporation of the 1st Respondent illegal and void was executory, as it clearly placed a further duty on a third party, the Corporate Affair Commission, to wind up the 1st Respondent. There is no evidence that, at all times material to the decision appealed, the winding up order had been carried out on duly executed.

The fresh and additional evidence, the bundle of documents (comprising the various Union Bank of Nigeria Plc Cheques) filed in this appeal by the Appellants on the orders of this Court made on 18th December, 2020, clearly shows that inspite of the decision of Justice Okorowo and the order made in the suit No FHC/ABJ/CS/179/2010 on 20th January, 2012, the 1st Respondent was very much around and on ground transacting businesses, as reflected by the 50 cheques by which various sums of money were paid into its account no. 0321530771 held at the Union Bank of Nigeria Plc.

This is a Court of Justice. Equity acting in personam will not lend its support to any conduct that smacks of fraud, and which is conscienceless. The belated affidavits of the 2nd and 3rd Respondents, post the garnishee order nisi, denying their indebtedness to the 1st Respondent for the purpose of thwarting the making of the garnishee order absolute are opaque and less than truthful. In the said belated affidavits they had adumbrated the fact of the 1st Respondent’s incorporation having been declared illegal and void which inter alia swayed the trial High Court to revisit and review its own final decision rendered on 9th July, 2013, even though functus officio, to come up subsequently with the decision appealed.

The lower Court erred in law in affirming the subsequent decision of the trial High Court, the intent and effect of which were deliberately to render its earlier final judgment and order of 9th July, 2013 nugatory and unenforceable.

The summary of my foregoing stance is that the two Courts below were in error in respectively refusing, and affirming the refusal, to grant the garnishee order absolute. Consequently, I allow the appeal. The decision of the lower Court delivered on 24th June, 2016 in appeal no. CA/L/274/2014 is hereby set aside. The ruling and/orders of the trial High Court delivered on 21st January, 2014 in the suit no. M/145/2012 are also hereby set aside. In their place, an order granting the garnishee order absolute against the 2nd and 3rd Respondents, as the 1st and 2nd Garnishees, is hereby entered and that shall be the order of the trial High Court in the suit no. M/145/2012.

Appeal allowed. Costs at N3,000,000.00 are hereby awarded in favour of the Appellants and against each Respondent.

---

SC.841/2016