Zenith Bank Plc. vs Pedmar (Nig.) Ltd. & Ors. (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUHAMMAD IBRAHIM SIRAJO, JCA: (Delivering the leading judgment)

Before the Federal High Court, sitting in Lagos (the lower court), the respondent obtained judgment for the total sum of US$128,774.00 on 17/04/2003, Coram Dan Abutu, J. (as he then was), against I.G.N. (Nigeria) Ltd. and Institute Geotechniek Nederland B.V. pages 27 – 44 of the record of appeal.

The judgment debtors appeal to the Court of Appeal was dismissed in a judgment delivered on 08/07/2013 pages 46 91 of the record.

Their further appeal to the Supreme Court was dismissed on 25/03/2015 under order 6 rule 3 (2) of the Supreme Court Rules, 1999, as amended. See pages 93 – 96, particularly No. 16 on page 95 of the record of appeal.

In a bid to enforce the judgment and the cost of N30,000.00 awarded in their favour by the Court of Appeal, the judgment debtors initiated garnishee proceedings against 19 banks by filing a motion ex parte for an order nisi on 25/04/2017.

The order sought was made on 31/05/2017 and further made absolute against Zenith Bank on 17/10/2017. On 09/11/2017, the garnishee bank filed a motion on notice seeking to stay execution of the order absolute as well as to set aside the order absolute on the ground that the garnishee had filed an affidavit showing cause on 11/07/2017 and that counsel for the garnishee was not in court on 17/10/2017 when the matter came up because he took ill.

The judgment creditors filed two processes on 15/12/2017, to wit: motion on notice for extension of time to file counter affidavit in opposition to the garnishees application and a motion on notice seeking to commit to prison the garnishee and its Chief Executive Officer and two Executive Directors, who were named in the application as Mr. Peter Amangbo, Olusola Oladipo and Ahmed Umar Shuaib, respectively.

The alleged contemnors filed counter affidavit to the motion for committal. On 9th January, 2018, the garnishee filed yet another motion seeking to set aside the garnishee order absolute as well as an order restraining the judgment creditors from enforcing the garnishee order absolute.

In a considered ruling delivered on 05/03/2018 in respect of the garnishees application of 09/01/2018, the lower court found the application unmeritorious and accordingly dismissed same. Naturally aggrieved by the ruling dismissing its application, the Garnishee Bank appealed to this court vide a notice of appeal filed on 06/03/2018 at the Registry of the lower court anchored on three grounds of appeal. Reliefs sought by the appellant are:

1. An order allowing the appeal.
2. An order setting aside the ruling of the learned trial Judge and setting aside the garnishee order absolute made on 17/10/2017 in suit No. FHC/L/CS/740/1997: Pedmar (Nigeria) Ltd & Anor v. I.G.N. (Nigeria) Ltd & Anor, In Re: Zenith Bank Plc.

Written briefs of argument were filed and exchanged by the parties. Appellants brief of argument was filed on 12/09/2018 but deemed properly filed and served on 13/10/2022 at the hearing of the appeal. The 1st and 2nd respondents brief of argument was filed on 30/11/2020 but also deemed as properly filed and served on 13/10/2022. While the appellants brief was settled by Dapo Oduwole of F.O. Fagbohungbe & Co., that of the 1st and 2nd respondents was settled by Ms. F.R.A. Williams of Chief Ladi Rotimi Williams Chambers. 3rd and 4th respondents did not file any process in this appeal. In the appellants brief of argument, a sole issue was distilled for determination, as follows:

Whether the lower court was wrong when it failed to grant the appellants application dated 9th January, 2018 despite the fact that the appellant was not served with hearing notice of the proceedings of 17th October, 2017 and failed to consider the peculiar facts and circumstances of the case?

The 1st and 2nd respondents adopted the sole Issue distilled for determination by the appellant. At the hearing of the appeal on 13/10/2022, learned counsel for the parties adopted their respective briefs of argument. While the appellants counsel urged the court to allow the appeal, counsel to the 1st and 2nd respondents urged the court to dismiss the appeal.

Arguments on the lone issue:

Learned counsel for the appellant stated that the crux of the appellants application before the lower court for an order to set aside the garnishee order absolute was that: