Skye Bank PLC V. Okene A. David & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Kaduna State High Court in suit No. KDH/KAD/955/2011, delivered by Hon. Justice Dogara Mallam on 29/7/2011, wherein his lordship made an order nisi for the payment of judgment sum of N6,949,000.00 (Six Million Nine Hundred and Forty Nine Thousand Naira), absolute, against the Appellant, who was the Garnishee at the Lower Court, in favour of the 1st to 20th Respondents.

The 1st to 20th Respondents had obtained judgment against the 21st and 22nd Respondents in a suit in the sum of N6,949,000.00 and had taken out his suit (KDH/KAD/955/2011) at the Lower Court to recover the amount from the Garnishee (now Appellant) who custodied the money of the 21st and 22nd Respondents.

Upon the service of the Order Nisi on the Appellant, Appellant filed affidavit to show cause why the Order Nisi should not be made absolute, attaching the statement of the account of the 21st and 22nd Respondents with the Appellant. In the affidavit, Appellant also deposed to the fact that, prior to being served with the Garnishee Order Nisi, it had been served with an order from the Federal High Court, Ikoyi, Lagos, at the instant of Economic and Finance Crime Commission (EFCC), freezing the accounts of the 21st and 22nd Respondents with the Appellant and effectively preventing the Appellant from making any outward payment to third parties from the said Accounts.

After hearing the arguments, the learned trial judge had ruled that the Appellant had not shown cause why the order Nisi should not be made absolute and so gave judgment for the 1st to 20th Respondents.

Appellant filed its Notice of Appeal, dated 1/8/2011, as per pages 80 – 84, and formulated 3 grounds of appeal. It filed its brief of argument on 18/11/2011 and distilled three (3) issues for determination, as follows:-

(1) Whether the trial court was justified in holding that the Federal High Court freezing order made pursuant to section 34(1) of the Economic and Financial Crimes Commission Act, Cap E1 LFN 2004 is subject to the operation of Order 9 Rule 12 (1) of the Federal High Court (Civil Procedure) Rules, 2000, and therefore has a life span of 14 days which has lapsed? (Ground 1)

(2) Whether the provision of Order 9 Rule 12(1) of the Federal High Court (Civil Procedure) Rules 2000 is extant, in the light of the provisions of Order 1 Rule 1 of the Federal High Court Civil Procedure Rule 2009? (Ground 2)

(3) Whether the trial court was right in holding that the effect of the freezing Order of the Federal High Court against the Appellant is to transfer the custody of the funds to the Federal High Court and thereby making the Federal High Court, Ikoyi, Lagos in custodia Legia of the funds,” (Ground 3).

Appellant also filed a Reply brief on 20/1/12 which was deemed duly filed on 30/10/12. That was done, mostly, because the Respondents had filed a preliminary objection to the appeal on 30/12/11, seeking an order to strike out the Notice of Appeal and the appeal, on the grounds that the Notice of Appeal offends Order 6 Rule 2(1) of the Court of Appeal Rules; that no leave was sought and obtained before filing the Notice of appeal; that garnishee proceedings are interlocutory applications and that the Notice of Appeal does not have endorsed on it address for service. The Respondents argued the preliminary objection in paragraph 2.0 to 3.15 of their brief, filed on 16/12/2011. They also, on the appeal, distilled 3 issues for determination, as follows:-

(1) Whether an exparte order can be made in perpetuity by the Federal High Court, Lagos pursuant to section 34(1) of the Economic and Financial Crimes Commission Act, Cap E1, LFN, 2004

(2) Whether an order of Court would be set aside on the basis that it was made under a wrong law or rule of Court.

(3) Whether by virtue of the freezing order issued by the Federal High Court Lagos, the funds in the account of the 21st and (sic) 22nd Respondents are in the custody of the Federal High Court, Lagos.”

At the hearing of the appeal on 4/3/14, the parties moved this court accordingly, starting from the preliminary objection by the Respondents.