Union Bank Of Nigeria PLC V. Uwa Printers Nigeria Limited & Ors (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the ruling of the High Court of Akwa Ibom State, Eket Judicial Division delivered on 9th May, 2011.

The facts leading to this appeal are as follows: The 1st and 2nd Respondents were the Judgment Creditors in Suit No HEK/139/2002, in which judgment was delivered on 10th June, 2008. The judgment sum was N515,000,000.00 (five hundred and fifteen million Naira) and costs of N40, 000.00 (forty thousand Naira).

The Judgment Creditors/1st and 2nd Respondents filed a motion ex parte, Suit No: HEK/Misc. 12/2009, pursuant to Section 83(1) of the Sheriff and Civil Process Act, seeking an order that a Garnishee Order Nisi be made against the Garnishee, who is the 3rd Respondent in this appeal, for recovery of the said judgment debt. The Garnishee Order Nisi was granted by the learned trial Judge Ita Mbaba, J. (as he then was) on 18th March, 2009.

The Garnishee, in compliance with the order, duly debited the account of the Appellant with them and filed an affidavit of compliance on 5th May, 2009.

Upon delivery of the judgment in Suit No HEK/139/2002 on 10th June, 2008, the Judgment Debtor, who is the Appellant herein, had filed a Notice of Appeal on 13/6/2008 and also filed a motion for stay of execution on 20/10/2008 at the Ikot Ekpene High Court. The appeal was entered as CA/C/174/2008. The Judgment Creditors/the 1st and 2nd Respondents herein, in response to the said motion for stay of execution before the Ikot Ekpene High Court filed a Counter Affidavit.

It was while the said motion was pending before the Ikot Ekpene High Court that the Judgment Creditors/1st and 2nd Respondents instituted the Garnishee proceedings in Suit No: HEK/Misc. 12/2009. Upon being served with the Garnishee Order Nisi, the Judgment Debtor/Appellant herein filed Motion on Notice, praying for the dismissal of the Garnishee proceedings with affidavit in support disclosing the pendency of the proceedings for stay of execution before the Ikot Ekpene High Court, and the fact that the appeal over the said Judgment had been entered before the Court of Appeal.

Also pending before the Court of Appeal was a motion for stay of execution of the said judgment in Suit No HEK/139/2002 sought to be recovered by the Judgment Creditors/1st and 2nd Respondents in the Garnishee proceedings in Suit No: HEK/Misc. 12/2009.

At the Court of Appeal, the pendency of the Garnishee proceedings before the Eket High Court was brought to the notice of the Court of Appeal, and the Court of Appeal, on 7th October, 2009, in the presence of learned Counsel for the respective parties ordered as follows:

“IT IS ORDERED:

The learned High Court Judge currently sitting at Eket High Court No. 1 is hereby ordered to Strike out any proceedings in Suit No: HEK/139/2002 as the appeal has been entered in this Court”

The said order brought to the notice of the lower court at Eket on 19th October, 2009. The reaction of the lower court to this Order from the Court of Appeal was as follows:

“In deference to the Order of the Appellate Court, I think it would be proper to adjourn this case, sine die, this case not being a proceeding in HEK/139/2002, but a Garnishee proceeding in Suit No: HEK/Misc. 12/2009, directly involving the Judgment Creditor and the Garnishee, this is to enable the matter at the Court of Appeal to be disposed of, in the interest of justice.”

The Court of Appeal in its judgment in CA/C/174/2008 filed in respect of Suit HEK/139/2002, upheld the appeal in part by disallowing the general damages of N300, 000,000.00 (Three hundred million Naira) awarded but affirmed the special damages of N215, 000,000.00 (two hundred and fifteen million Naira) less the sum of N4, 750,000.00 (four million, seven hundred and fifty thousand Naira) owed by the Judgment Creditors/1st and 2nd Respondents. The Appellant/Judgment Debtor filed a further appeal to the Supreme Court over that part of the judgment of the Court of Appeal which affirmed the Special damages awarded by the trial Court; and also filed a motion for stay of execution of the said judgment.