Zenith Bank Pl. V. Chief Arthur John & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: (Delivering the Leading Judgment)

On the 10th June, 2010, the Owerri Division of this Court, in a unanimous judgment in Appeal No. CA/PH/103/2006, in slightly modified terms, affirmed the judgment of Isoho, J, sitting at the Umuahia Division of the Federal High Court, delivered on 17th November, 2005, in Suit No. FHC/UM/CS/03/2000, between Chief Arthur John and Ors. v. Shell Petroleum Dev. Co. Nig. Ltd. (SPDC Nig. Ltd).

By an order of this court granted on 10th October, 2006, the execution of the above said judgment of Tsoho, J. was conditionally stayed upon the judgment, debtor (SPDC Nig. Ltd) giving the judgment Creditors (Chief Arthur John and others) a Bank Guarantee from Zenith Bank Plc in the judgment sum of about N1,849,000,000 (One Billion, Eight Hundred and Forty Nine Million Naira) within 30 days of the making of that order. This bank Guarantee was accordingly provided to the letter. It was provided to commence and take effect from 28th October, 2009 but not beyond 30th September, 2010.

Upon the dismissal of appeal No. CA/PH/103/2006, the Respondents herein, as the claimants before the High Court of Rivers State, sought for the following reliefs against the Appellant herein, as the Defendant in Suit No. PHC/1690/2010. The reliefs are:-

(1) The sum of N1,622,390,499.46 (One Billion, Six Hundred and Twenty Two Million Three Hundred and Ninety Thousand, Four Hundred and Ninety Nine Naira, Forty six kobo) as principal sum and interest thereon guaranteed to be paid to the claimants as at 10/06/2010;

(2) Interest on the said sum of N1,622,390,499.46 at the agreed rate of 10% per annum from 11/6/2010 till judgment; and

(3) Interest on the judgment debt at the rate of 10% per annum until satisfaction thereof.

This claim was supported by an affidavit of 13 paragraphs pursuant to Order 11, r.8 of the Rivers State High Court Rules, 2006 (High Court Rules) with 6 very copies exhibits attached thereto. These documentary exhibits are the root of this matter and appeal. Further to this, and sequel to an Ex-parte motion brought pursuant to Order 11 rule 8(10) and (12), of the High Court Rules, the Suit was placed on the undefended list and all processes filed pursuant thereto were ordered to be so marked for service on the Defendant/Appellant. This order was made on 2nd August, 2010 and the matter was adjourned to 12/8/2010 for hearing

On the 5th August, 2010, the Defendant/Appellant filed and served a notice of intention to defend supported by an affidavit of 26 paragraphs with 2 documentary exhibits as annexures. Also, on the 9th August, 2010, SPDC Nig. Ltd, filed an application seeking to be joined as on interested party and a further prayer for an order that it be served with all the processes in the Suit of the Claimants/Respondents. It is supported by an unprecedented number of grounds and an affidavit with very copious documentary exhibits. The Claimants/Respondents sought to challenge this application for joinder in a counter affidavit of 11 paragraphs, while a further affidavit in support was filed on behalf of the Defendant/Appellant, learned Counsel filed a further affidavit of 4 paragraphs in support of the notice of intention to defend.

At its sitting of 12th August, 2010, the lower Court took and considered all the arguments of the parties on the motion for an order for joinder etc and the notice of intention to defend. In its ruling of the same 12th August, 2010, the lower Court saw no merit in the application of SPDC Nig. Ltd, for joinder. It accordingly refused and dismissed it. Further to that, the lower court found that the affidavit in support of the notice of intention to defend did not disclose any defence on the merit and it proceeded to discountenance same. Against all these, the lower Court then entered judgment for the Claimants/Respondents in terms.

The Defendant/Appellant was dissatisfied with this ruling and it appealed to this Court. This appeal is predicated on an amended notice of appeal incorporating 10 grounds of appeal. With the leave of this Court, this amended notice of appeal was filed on 13th July, 2011.

To argue the appeal, the Appellant filed on amended brief of argument, with the leave of this Court. It is dated and filed on 21st September, 2011. In response, the Respondents filed an amended brief of argument. It is dated and filed on 26th September, 2012 but deemed properly filed and served on 7th November, 2012. The Appellants reply brief dated 26th January, 2012 but filed on 27th January, 2012 was deemed properly filed and served on 7th November, 2012.

At the hearing of the appeal, respective learned Counsel each identified, adopted and relied on their respective briefs of argument. Learned Counsel Mr. K. C. Osuh for the Appellant urged on us to allow the appeal and set aside the undefended list judgment of the lower Court, while learned counsel to the Respondents Mr. Aside urged on us to resolve all the issues identified for the determination of this appeal against the Appellant and in favour of the Respondents and to consequently dismiss this appeal and affirm the judgment of the lower court.

From the 10 grounds of appeal, learned Counsel to the Appellant formulated the following 5 issues for the determination of this appeal. They are:-