Zenith Bank Plc V. Chief Arthur John & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Appellant/Applicant Zenith Bank PLC prays for an order of unconditional stay execution and interlocutory injunction which I shall reproduce verbatim.

1. AN ORDER OF UNCONDITIONAL STAY OF EXECUTION of the Judgment of the Court of Appeal, Port Harcourt Division, Coram Honourable Justice Ali Abubakar Babandi Gumel, Honourable Justice Chioma Egondu Nwosu-Iheme and Honourable Justice Uchechukwu Onyemenam, delivered on Thursday 6th December, 2012 in Appeal No.CA/PH/436/2010: Zenith Bank Plc v. Chief Arthur John & ors affirming the Judgment of the High Court of Rivers State Coram Honourable Justice S. C. Amadi, delivered on Thursday 12th August, 2010 in suit No.PHC/1690/2010: Chief Arthur John & 2 Ors v. Zenith Bank Plc whether by garnishee proceedings or by any other mode of execution or enforcement, pending the hearing and determination of the Applicant’s pending instant appeal against the said Judgment before this Honourable Court.
2. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Respondents, their agents, messengers, privies, representatives, heirs and/or any person(s) acting pursuant to the Respondents’ request, instigation and/or instruction (such person(s) being and/or including the Inspector-General of Police, the Commissioner of Police, Rivers State and their officers; the Joint Task Force, Civil Defence Corps etc. or any law enforcement authority howsoever called from attempting, commencing, continuing or concluding any step, action or process which is aimed at and/or has the effect of acting upon and/or giving effect to the Judgment of the Court of Appeal, Port Harcourt Coram Honourable Justice Ali Abubakar Babandi Gumel, Honourable Justice Chioma Egondu Nwosu-Iheme and Honourable Justice Uchechukwu Onyemenam, delivered on Thursday 6th December, 2012 in Appeal No: PH/436/2010: Zenith Bank Plc. V Chief Arthur John & 2 Ors affirming the Judgment of the High Court of Rivers State Coram Honourable Justice S. C. Amadi, delivered on Thursday 12th August, 2010 in Suit No: PHC/1690/2010: Chief Arthur John & 2 Ors v. Zenith Bank Plc whether by garnishee proceedings or by any other mode of execution or enforcement, pending the hearing and determination of the Applicant’s pending instant appeal before this Honourable Court.
3. AN ORDER OF INTERLOCUTORY INJUNCTION restraining the Deputy Chief Registrar of the Court of Appeal, Port Harcourt the Chief Registrar or the Deputy Sheriff of the High Court of Rivers State, the Central Bank of Nigeria, their agents, messengers, privies, representatives, and/or any person(s) acting pursuant to the Respondents’ request, instigation and/or instruction from attempting, commencing, continuing or concluding any step, action or process which is aimed at and/or has the effect of acting upon and/or giving effect to the Judgment of the Court of Appeal, Port Harcourt Coram Honourable Justice Ali Abubakar Babandi Gumel, Honourable Justice Chioma Egondu Nwosu-Iheme and Honourable Justice Uchechukwu Onyemenam, delivered on Thursday 6th December, 2012 in Appeal No: CA/PH/436/2010: Zenith Bank Plc v Chief Arthur John & Ors affirming the Judgment of the High court of Rivers State Coram Honourable Justice S. C. Amadi delivered on Thursday 12th August, 2010 in Suit No:PHC/1690/2010: Chief Arthur John & 2 Ors v Zenith Bank Plc whether by garnishee proceedings or by any other mode of execution or enforcement, pending the hearing and determination of the Applicant’s pending instant appeal before this Honourable Court.

AND for such ORDERS or FURTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.

GROUNDS UPON WHICH THIS APPLICATION IS BROUGHT

1. The Applicant has filed a Notice of Appeal dated 6th December, 2012 on grounds of pure law to the

Supreme Court against the Judgment of the Court of Appeal, Port Harcourt Coram Honourable Justice Ali Abubakar Babandi Gumel, Honourable Justice Chioma Egondu Nwosu-Iheme and Honourable Justice Uchechukwu Onyemenam (“The Lower Court”), delivered on Thursday 6th December, 2012 in Appeal NO: CA/PH/436/2010: Zenith Bank Plc v chief Arthur John & ors affirming the Judgment of the High court of Rivers State coram HonourabLe Justice S. C. Amadi delivered on Thursday 12th August, 2010 in suit No:PHC/1690/2010: Chief Arthur John & 2 Ors v Zenith Bank plc.

2. The Notice of Appeal raises substantial and recondite issues of law which go to the root of the Judgment and have a good chance of success. Some of the issues are:

i) whether the Lower Court was right when it held that the Trial High Court had the requisite jurisdiction to entertain Suit No.PHC/1690/2010: Chief Arthur John & 2 Ors v Zenith Bank Plc

ii) whether the Lower Court was right to have validated the Trial High Courts hearing of the Respondent’s suit No.PHC/690/2010: Chief Arthur John & 2 Ors v Zenith Bank Plc despite being already aware that the subject matter of that action was interconnected with and subject of an application for stay of proceedings before the Court of Appeal, Owerri and also an appeal before the Supreme Court

iii) Whether the Lower Court was right to have affirmed the Judgment of the Trial High Court which subsequently conflicted with the Ruling of the Court of Appeal, Owerri staying execution of its Judgment (which is the res in the action before the Trial High Court) and also interfered with and purports to pre-empt the decision of the Supreme Court in a pending appeal from the said Judgment of the Court of Appeal, Owerri

3. The Respondents are an indeterminate number of persons who lack the means to repay the Judgment Sum which is in excess of N1,000,000,000.00 (One Billion Naira) in the event that the Applicants instant pending appeal before this Honourable Court is successful. Thus, the res in this appeal shall be destroyed and a return to status quo will be impossible if the Judgment of the Lower Court delivered on 6th December, 2012 in Appeal No.CA/PH/436/2010 @ Zenith Bank Plc. v Chief Arthur John & 2 Ors affirming the Judgment of the High Court of Rivers State Coram Honourable Justice S. C. Amadi delivered on Thursday 12th August, 2010 in Suit No:PHC/6990/2010: Chief Arthur John & 2 Ors v Zenith Bank Plc is executed and/or otherwise enforced during the pendency of the Applicant’s instant appeal to the Supreme Court against the said Judgment of the Lower Court.
4. Further to the preceding paragraph, the applicant will have an empty, pyrrhic and inconsequential victory thus foisting a fait accompli on the Supreme Court in the likely event of the success of the Applicants pending instant appeal at the Supreme Court of Nigeria if the said Judgment of the Lower Court delivered on 6th December, 2012 in Appeal NO.CA/PH/436/2010: Zenith Bank Plc v Chief Arthur John & Ors affirming the Judgment of the High Court of Rivers State coram Honourable Justice S. C. Amadi delivered on Thursday 12th August, 2010 in Suit No: PHC/1690/2010: Chief Arthur John & 2 Ors v Zenith Bank plc is executed and/or otherwise enforced by the Respondents.
5. The Respondents’ Counsel, Mr. Lucius E. Nwosu SAN and Mr. Emmanuel Asido, have a predilection for taking steps which are prejudicial to pending proceedings before the Appellate Courts and it is very likely to attempt to execute or otherwise enforce the Lower Courts Judgment unless this application is granted.
6. The Applicant made a similar application for Stay of Execution and enforcement of the Judgment before the Lower Court but it would not be heard before the Record of Appeal was entered in the Supreme Court.
7. The grant of this application will further the interest of justice and the Respondents cannot be prejudiced by the grant of this application in any manner howsoever.

In furtherance of this application, the Applicant filed a 13 paragraph supporting affidavit, a further and better affidavit and a 2nd further better affidavit. A written address filed on 12/5/2014 and a Reply on points of law filed on 2/6/2012 was effected by Olawale Akoni SAN of counsel.

The Respondent filed a Notice of Preliminary Objection on the 11/2/2013, a Counter Affidavit on the 21/3/14 and a Further Counter Affidavit and a written address of the 23/5/2014. The Objection and Grounds are restated below as follows:-

TAKE NOTICE that the Respondents/Objectors herein shall, at the hour of 0900 Hours on 15th day of July, 2013 fixed for hearing of the Appellant/Applicant’s Motion For Stay of Execution or any further adjourned date, by way of Preliminary Objection seek an order of this Honourable Court dismissing the Appellant/Applicant’s Motion For Stay as the same is incompetent and constitutes an abuse of this Courts process.

AND TAKE FURTHER NOTICE that the grounds upon which this application is brought are as follows:-

1. The Respondent’s suit at the trial court was sequel to an unconditional Guarantee issued by the applicant which expired in September 30, 2010, except sooner enforced (as was done in this case) upon the dismissal of a third party appeal at the Court of Appeal.
2. The applicant by letter under the hand of their Company Secretary and Legal Adviser admitted liability and the abidingness of the said Guarantee on them after the third party appeal is dismissed.
3. The Respondents issues cheques on the said Guarantee which was dishonoured by the applicant hence an independent suit No.PHC/1690/2010 was commenced thereupon at the Rivers State High Court.
4. The Rivers State High Court found for the respondents and later dismissed the applicants Motion for Stay of Execution. A Writ of Fieri Facias was issued by that Court, executed and chattels attached on the ground.
5. A Garnishee Order Absolute was also issued against the applicant’s account at Central Bank which had been served on the bank, and the Central Bank had filed processes at the High Court and the Court of Appeal regarding that.
6. Applicant filed and argued a Motion for Stay of Execution at the Court of Appeal, Port Harcourt which was dismissed.
7. An appeal by the Applicant against the Judgment of the Rivers State High Court enforcing the Guarantee was also dismissed, by the Court of Appeal, Port Harcourt Division.
8. The Central Bank of Nigeria curiously appealed against the Garnishee Order Absolute and the said Appeal No. CA/PH/477/2010 was struck out as being incompetent.
9. The Garnishee Order Absolute is still extant and The Central Bank of Nigeria has filed fresh proceedings at the High Court of Rivers State in Suit No.PHC/1690 now pending before Justice Ogbuji of that Court.
10. The Central Bank of Nigeria similarly in collusion with Shell has filed a fresh application for extension of time for leave to appeal and leave to appeal against the Garnishee Order Absolute, which is now pending, at the Court of Appeal, Port Harcourt Division.
11. By reason of the foregoing, the application filed before this court to stay an execution already levied and extant Garnishee Order Absolute will have the effect of this apex Court exercising jurisdiction over a matter variously pending at the trial Court and those initiated at the Court below by non parties herein which are yet to come before the Supreme Court.

BACK GROUND FACTS:

The bone of contention in this application is connected with the dispute in Suit NO.FHC/UM/CS/03/2000 commenced by the Respondent (as Plaintiffs) against Shell Petroleum Development Company of Nigeria Limited (“SPDC”) at the Federal High Court, Umuahia (“FHC Umuahia”) seeking various monetary reliefs. In a judgment delivered on 17th November, 2005, the Federal High Court Umuahia awarded the sum of N1,849,187,568.00 in favour of the Respondent and against Shell Petroleum Development Company Nigeria Limited.