Skye Bank PLC V. Cornelio Colombara & Anor (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of the High Court of Lagos State delivered by Y. A. Adesanya J. on 25/6/2009 in suit No.ID/272/2005 wherein a garnishee Order Nisi for the sum of US$52,441.97 and N1,600,472,32 was made absolute.

The 1st Respondent herein had as Claimant in the Lower Court filed a writ of summons and a statement of claim dated 17/5/2005 against the 2nd Respondent (as defendant) claiming the sum of $52,441,47 and N1,600,472,32 being offshore and onshore entitlements due to the 1st Respondent from the 2nd Respondent and interest in the above sum at 10% per annum from 31/7/2003 till judgment is delivered.

In a judgment delivered on the 25/6/2009 the Lower Court dismissed the 2nd Respondent’s Counter-claim and entered judgment in favour of the 1st Respondent (as claimant) in the sum of $52,441,97 and N1,600,472 and interest thereon at the rate of 10% per annum from 31/7/2003 till 25/6/2009 and thereafter at the same rate until judgment debt is fully liquidated.

Subsequently, the 1st Respondent commenced a garnishee proceeding against the appellant pursuant to which a Garnishee Order Nisi was made against the appellant by the Lower Court on 23/11/2009 to show cause why the Order Nisi will not be made absolute.

The appellant reacted by filing a total of four affidavits to show cause in succession. On the return date, the Lower Court after due consideration of the contents of the appellant’s affidavits delivered a ruling wherein it entered an Order Absolute on 10/12/2010.

Being aggrieved by the said Ruling granting a garnishee order absolute, the appellant filed a notice of appeal containing three grounds of appeal.

Brief of argument were subsequently filed and served pursuant to the relevant Rules of the Court.

The appellant’s brief of argument dated 17/6/2013 and filed on 19/6/2013 was deemed properly filed on 9/10/2013. The Respondent’s brief of argument was dated and filed on 10/10/2013.

In the appellant’s brief of argument three issues were formulated for determination as follows:-

(1) Whether the appellant had a lien of the attached funds.

(2) Whether the learned trial judge was right in the circumstance of the proceedings before the court to have made a garnishee order absolute against the appellant without first directing the appearance of the Lagos State Government and concluding an inquiry.

(3) Whether the Lower Court was right in holding that the 60% advance payment was inclusive of the profits accruable to the 2nd Respondent.

In the Respondent’s brief of argument one issue was formulated as follows: