Zamfara State Government Of Nigeria & Ors V. Ecobank Nigeria Limited & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Lead Ruling)

The notice of motion prays for -AN ORDER OF INTERLOCUTORY INJUNCTION restraining the 1st Respondent (Judgment Creditor), its servants, agents and privies from activating and/or further proceeding to enforce the Judgment debt in Suit No. FHC/L/CS/872/2015 delivered by Honourable Justice O.E. Abang sitting at Federal High Court, Lagos Division on 30th September, 2015 by way of garnishee proceeding or by any other means against the account of the Appellants/Applicants (Judgment Debtors) in any Banking institution in Nigeria particularly in ZENITH INTERNATIONAL BANK PLC, ACCESS BANK PLC, CITIBANK NIGERIA LTD, STANDARD CHARTERED BANK PLC, WEMA BANK PLC, UNION BANK PLC, FIRST BANK OF NIGERIA PLC, SKYE BANK PLC, ENTERPRISE BANK LIMITED, STERLING BANK PLC ,UNITY BANK NIGERIA PLC, KEYSTONE BANK LIMITED, UNITED BANK FOR AFRICA PLC, MAINSTREET BANK PLC, FIRST CITY MONUMENT BANK PLC, DIAMOND BANK PLC, NIGERIA INTERNATIONAL BANK LTD (CITI BANK), STANBIC IBTC BANK PLC; GUARANTY TRUST BANK PLC, FIDELITY BANK PLC and ECOBANK NIGERIA LTD.

pending the hearing and determination of the application for Stay of Execution pending before this Honourable Court OR otherwise taking any other step in purported exercise of its right to fruit of its judgment adverse to the hearing of the pending application for Stay of Execution dated and filed 20th October, 2015 and the extant appeal.

The notice of motion is supported with affidavit evidence and some exhibits to the effect that upon the entry of money judgment on the undefended list in the sum of N3,159,017,940.71k with pre-judgment interest of 30% per annum and post judgment interest of 10% per annum by the Federal High Court Lagos (the Court below), against the appellants in favour of the 1st respondent, the 1st respondent garnisheed the bank accounts of the 1st Appellant with the 1st – 21st garnishees by obtaining an order nisi to that effect.

The appellants appealed against the judgment and brought the present application. Paragraphs K – P of the affidavit in support of the notice of motion deposed thus –

k. The Appellants/Applicants as the Government of a State of the Federation has the responsibility of settling several obligations including the payment of monthly salaries of workers in the state public and civil services and making monthly statutory transfers to other organs of Government of the State including the State Judiciary. All these state apparatuses and agencies all will suffer immeasurably if the 1st Respondent and the trial Court are allowed to continue to enforce the judgment whilst this appeal and an application of stay of execution are pending before the Honourable Court.

l. The fragile economy of Zamfara State will be perilously and negatively impacted by an enforcement of the judgment of the trial Court until the appeal and the application for stay of execution of the said judgment now pending before the Honourable Court are determined one way or another.

m. Unless the 1st Respondent is restrained in the manner prayed for on the face of the motion papers any steps which the 1st Respondent may take pursuant to the garnishee order will be totally irreversible.

n. The right of appeal of the Appellants/Applicants is a legal right or interest worthy of being protected by an injunctive order in the manner sought.

o. The Appellants/Applicants would suffer more inconvenience if the orders sought are not granted.

p. The balance of convenience is on the side of the Appellants/Applicants in the light of the pending appeal and an application for stay of execution of judgment before this Honourable Court.

The 1st respondents counter affidavit deposed inter alia that –

24. That the Garnishee Order nisi made by the Lower Court attaching the funds of the Applicants with the garnishees has not in any way frustrated the Applicants in the fulfillment of their alleged statutory obligation to the citizens.
25. That most of the garnishees are yet to fully comply with the garnishee Order nisi of the Lower Court despite the service of the Order on them. Attached and marked “Exhibit F” are some of the correspondence authored to the said garnishees in that regard.
26. Contrary to the erroneous deposition as contained in the Applicants Supporting Affidavit at Paragraph 3{f} the consent of the Attorney general of the Federation or that of Zamfara State Government is not required to commence the garnishee proceedings at the Lower Court against the judgment debtors/applicants.
27. That the Lower Court however on the 12th day of November, 2015, stayed the garnishee proceedings due to the pendency of the Applicants applications at the Court of Appeal. Attached and marked Exhibit G is the Certified True Copy of the said ruling of the Lower Court, which is now within the knowledge of the Applicants.
28. That the Applicants present as presently constituted is now a mere academic exercise, overtaken by events and not worthy of the precious time of this Honourable Court in view of the attached Exhibit G.
29. That the execution of the judgment of the Lower Court dated the 30th day of September, 2015 will not in any way affect the Appellant’s in the discharge of their obligation to the citizens as being alleged since the facility was availed also for that purpose.
30. That the facts of the indebtedness of the Appellants to the 1st Respondent is not in dispute but the Applicants are bent on frustrating the retrieval of the said funds under the guise of state and its agencies.
31. That I am quite aware of the fact that government is a continuum and as such bound by acts of the previous government of the State.
32. Contrary to the deposition in the Appellant’s Supporting Affidavit, the decline or fall in the price of Crude Oil has adversely affected the 1st Respondent’s business due to the refusal of the Appellants to liquidate their indebtedness based on the foregoing guise.
33. That the grant of this application as presented would adversely affect the 1st Respondent and its business while the refusal of same would be in the overall interest of Justice.
34. That the 1st Respondent to the subject application is a commercial Bank and consequently in custody of third party funds which were extended to the Applicants to execute some water/developmental projects for its citizens.
35. That the 1st Respondent stands the risk of losing its operating licence in view of the huge outstanding indebtedness as widely reported in several newspapers one of which is attached and marked “Exhibit H”.
36. That the loss of the banking licence of the 1st Respondent due to the acute indebtedness of the Appellants to it will certainly have a ripple effect on the economy, on the banking public at large, its stakeholders, shareholders, its personnel and thousands of staff on its payroll.
37. That there is an urgent need to retrieve the judgment sum from the Applicants to salvage the 1st Respondent’s business and indeed those of its depositors.

The reply affidavit to the 1st respondents counter affidavit deposed in the main that if the application is not granted the affairs of governance of the 1st appellant will be paralysed. Paragraph 5 thereof deposed in that wise thus-

5. That unless the Appellants application for interlocutory injunction as prayed, is granted and the garnishee order nisi suspended, the entire economic, social life, security infrastructure of governance at all levels in Zamfara State

is in grave danger of catastrophic implosion with perilous and irreversible outcome that will gravely threaten the fragile but volatile peace existing in the State particularly now that the country is grappling with the festering Islamic extremism (Boko Haram) in the North East of the country and sporadic terrorists attacks and herdsmen disturbances in the North Central and North Western States of the Country where Zamfara State is situated.