Zamfara State Government of Nigeria and Others v Ecobank Nigeria Ltd and Others (CA/L/1025M/2015)[2016] NGCA 40 (25 February 2016) (CA/L/1025M/2015) [2016] NGCA 40 (24 February 2016);

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Headnote and Holding:

The court determined the principles of granting a stay of execution and injunction pending appeal in a case that involves a state government.

The first respondent raised a preliminary objection on the jurisdiction of the court, since there was a stay of execution pending in the court below on the same issue and the first appellant had not appealed on the attachment of the appellant’s monies in banks (garnishee order). In determining its jurisdiction, the court applied Order 4 Rule 6 of the Court of Appeal Rules 2011 (Rules of the Court) and held that it had discretionary powers to make injunctions pending appeal even when no application lied in the court below depending on the facts and circumstances of the case. Additionally, the court held that there was an appeal predicated on the garnishee order thus the issues were properly before it.

The court set out the principles of granting a stay of execution and injunction pending appeal: to preserve the subject matter of the appeal from irreparable damage pending appeal. It also held that the principles are applied when a party has an arguable appeal and to enhance public interest.

The court observed that the appellant had admitted its indebtedness to part of the judgment debt and held it just and fair to refuse the application with respect to that amount. The court held that the trial court erred in granting garnishee orders on balance of the judgment debt. Accordingly, the application succeeded in part. 

 
 
In the Court of Appeal
Holden at Lagos

 

Between

Appellant

1. ZAMFARA STATE GOVERNMENT OF NIGERIA
2. ATTORNEY GENERAL, ZAMFARA STATE
3. MINISTRY OF FINANCE, ZAMFARA STATE

and

Respondent

1. ECOBANK NIGERIA LTD.
2. FEDERAL MINISTRY OF FINANCE
3. ACCOUNTANT GENERAL OF THE FEDERATION
4. ATTORNEY GENERAL OF THE FEDERATION.
5. CENTRAL BANK OF NIGERIA (CBN)

 

Judgement

JOSEPH SHAGBAOR IKYEGH, (JCA): 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/872/2015delivered 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 respondent’s 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 respondent’s 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.”

The reply affidavit concluded in paragraph 7 thereof thus –
“7.    That Appellants are willing to give an undertaking to approach other banks who are already constrained by garnishee order nisi as extended on 16th November, 2015 to provide some guarantee for the sum of =N=800 million within a period of 12 months representing the compromised sum earlier offered as a comfort to the 1st Respondent /Judgment creditor prejudice to and a condition on which the pending motion for stay of execution may be     eventually disposed of, pending the determination of the approval.”

The 1st respondent deposed to a further counter affidavit in response to the further affidavit of the applicant inter alia thus –
“9.    That the deposition contained in paragraph 4 {u} and {v} deals on substantive issues emanating from the judgment of the trial Court.
That same does not relate to the garnishee proceedings, subject matter of the instant application.
10.    That contrary to the unsubstantiated sentiment and/or “cheap blackmail" expressed in paragraph 5 of the Reply Affidavit, {from the Affidavit to show cause filed by the various Garnishees} that the Order nisi of the trial Court has not in any way affected the Appellants.
11.    In addition to paragraph 8 above, I know the refusal of the Appellant to liquidate their {now} chronic indebtedness to the 1st Respondent has adversely affected the 1st Respondent, being a custodian of third parties funds.
12.    Contrary to the deposition in paragraph 6, I know that the judgment of the trial court was based largely on admission by the Appellant and
from the antecedents of the indebtedness, the possibility of recovering third parties funds from the Appellants upon the dismissal of their
appeal is zero.
13.    That the garnishee proceedings is the only way via which depositors' funds can be recovered from the Appellants as all other efforts made to recover the funds were unsuccessful.
14.    That the judgment appealed against is a monetary judgment and the 1st Respondent is in a position to refund the judgment sum, in the very unlikely event the Appellants' appeal succeeds.
15.    That in response to paragraph 7, it is clear from the depositions in paragraph 4 {t} {i - xv} that none of the Garnishees attached anything close to the alleged sum of =N=800 Million stated in the said paragraph.
16.    That as a lack of seriousness in liquidating their {now} chronic indebtedness, the Appellants failed and/or refused to exhibit a copy of the said negotiable instrument, buttressing their undertaking.

17.    That the 1st Respondent is in dire need of the depositors' funds it availed the Appellants, as duly admitted by them.”

The 1st respondent also filed another counter affidavit with these depositions -
5.    That the Appellants/Applicants recently authored correspondence dated 4th January, 2016 and 11th January, 2016 respectively expressly seeking to violate the subsisting orders of the Federal High Court Coram Abang .J. attached as Exhibits FFl 8r. FF2 are copies of the said correspondence.
6.    That the Appellants/Applicants have continued to run their various accounts inspite of the existence of the judgement particularly the
Garnishee order nisi.
7.    That     Exhibits     FFl     8r. FF2     were authored by the Appellants/Applicants after I have deposed to the affidavits as stated in paragraph 4 above, thus the need to depose to this 2nd
Further Counter Affidavit to bring to the attention of this Honourable Court the contemptous correspondence.
8.    That this Affidavit is necessary for records purposes as same will aid the Honourable Court in determining the pending application.”

It was submitted in the written address of the 1st appellant that the principles for the grant of an application for a stay of execution and injunction pending appeal are the same vide Ajomale v. Yaduat (No.s2) (1991) 1 SC 570 at 578, Akibu v. Oduntan (1991) 2 NWLR (pt.171) 14; that an injunction pending appeal as the one sought in the present application is considered and granted mainly to maintain the status quo ante and thereby preserve the subject matter of the appeal from irreparable damage or destruction pending the determination of the appeal vide Al Plc v. Union Merchant Bank Ltd. (2013) LPELR – 20180; that on the facts disclosed by the affidavit evidence the 1st appellant has an arguable appeal on jurisdiction of the court below and that the balance of convenience favours the success of the application which should affect the garnishees though not parties in the application citing in support the cases of Kotoye v. C.B.N. (1989) 1 NWLR (pt.98) 419 at 441, Alawiye v. Ogunsanya (2013) 5 NWLR (pt.1348) 570, Wema Sec and Finance Plc v. NAIC (2015) 16 NWLR 93 at 143 C.C.B. (Nig.) Plc. v. Ozobu (1998) 3 NWLR (pt.541) 4 NWLR (pt.287) 254, Otogbolu v. Okeluwa  and Ors. (1981) 12 N.S.C.C. 275 at 287, Alalade v. Northline Ind. and Agric. Service Ltd. (2003) 14 NWLR (pt.839) 172 at 185, Registered Trustees, Apostolic Church v. Olowoleni (1990) 6 NWLR (pt.158) 514, Eze and Ors. v. Governor of Abia State and Ors. (2014) LPELR – 23 276, Kotoye v. CBN (1989) 1 N.S.C.C. Vol.20 (pt.1) 238, Globe Fishing Ind. Ltd. v. Coker (1990) 7 NWLR (pt.162) 265.

It was submitted in the reply written address settled by the 1st respondent that the further counter affidavit is an abuse of the process of the court as the filing of affidavit by a respondent stops at the counter affidavit, so the further counter affidavit should be discounted vide Manson v. Hlliburton Energy Services Ltd. (2007) 2 NWLR (pt.1018) 211 at 228, Conoil Plc v. Viotal S.A. (2012) 2 NWLR (pt.1283) 50; that there is no automatic right of appeal from decisions arising from garnishee proceedings vide P.P.M.C. Ltd. v. Delphi Pet. Inc. (2005) 8 NWLR (pt.928) 458 at 484 and section 14(1) of the Court of Appeal Act, 2004 read with the case of N.A.O.C. Ltd. v. Ogini (2011) 2 NWLR (pt.1230) 131.

The 1st appellant’s reply address pointed out that the parties in the motions for a stay of execution and the present application are not the same; that the present application is predicated on a subsisting appeal brought under section 14(1) of the Court of Appeal Act 2004 read with the case of N.A.O.C. Ltd. v. Ogini (2011) 2 NWLR (pt.1230) 131; that an appellant can first file an application at the Court of Appeal without prior filing of the application at the court below vide Mohammed v. Olawunmi (1993) 4 NWLR (pt.287) 254 at 276 read with Order 4 rule 6 of the Rules of the Court, City Express Bank Ltd. v. Lagos State Government (2004) 7 NWLR (pt.872) 258 at 282, that by referring to section 84 of the Sherriffs and Civil Process Act, 2004, on the prerequisite of obtaining the fiat of the Attorney-General before attaching monies of government as judgment debt, the garnishee order has been brought into the application which shows the grounds of appeal disclose a triable issue vide Adeleke v. Lawal (2004) 3 NWLR (pt.1393) 1, Reckitt and Colman v. Gongoni (2001) 8 NWLR (pt.716) 592; and that an order of injunction can be made against the garnishees though not parties in the motion vide Okafor v. A.C.B. (1975) NSCC 276 at 282; and that the additional authorities of CBN v. Hydro Air PTY Ltd. (2014) 29 W.R.N. 145 at 154 and Onjewu v. Kogi State Ministry of Commerce and Industry (2003) 10 NWLR (pt.827) 40 at 79 should be used in granting the application for the purpose of lifting the garnishee order nisi, as the fiat of the Attorney-General was not obtained before the monies were attached; and that the application be granted.

The 1st respondent raised preliminary objection (P.O) to the application in her written address to the effect that the 1st appellant has a pending motion for a stay of execution over the same issue; that the 1st appellant did not appeal against the garnishee order nisi, which in any case is not appealable, therefore one cannot place something on nothing and that the application not having an appeal to stand on should be struck out, moreso the 1st appellant did not establish it had made prior application at the court below vide Purification Technique v. A.-G., Lagos State (2004) 9 NWLR (pt. 879) 655 at 678, A.C. v. Macfoy (1962) A.C. 152, A.C.B. Plc v. Obimiami Bricks and Stone (1993) 5 NWLR (pt. 294) 399 at 413, U.B.A. Plc v. Ekanem (2010) 6 NWLR (pt. 1190) 207 at 227, Coler v. Reis (2000) 6 NWLR (pt. 659) 78, C.B.N. v. U.T.B. Nig. Ltd. (1996) 4 NWLR (pt.445) 694, Obeya Memorial Hospital v. A. – G., Federation (1987) 3 NWLR (pt. 60) 323, Orhue v. NEPA (1998) 7 NWLR (pt. 557) 187 at 200, NITEL Plc v. I.C.I.C. (Directory Publishers) Ltd. (2009) 16 NWLR (pt. 1167) 359 at 390, Dingyadi v. INEC (2011) 10 NWLR (pt. 1255) 347 at 390 – 391, Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126 at 142, Anah v. Anah (2008) 9 NWLR (pt. 1091) 75 at 81-82 and Order 7 Rule 4 of the Court of Appeal Rules 2011 (Rules of the Court).

The written address of the 1st respondent contended that the complaint as to the absence of fiat of Attorney-General nonetheless is a substantive issue as it relates to the appeal herein and cannot be dealt with at the interlocutory stage of the proceedings vide Idanre Local Government v. Government of Ondo State (2010) 14 NWLR (pt. 1214) 509, Omina Nig. Ltd v. Dy Ktrade Ltd. (2007) 15 NWLR (pt. 1058) 576; that the principles for grant of a stay of execution and injunction pending appeal are coterminous vide Okafor v. Akibu (1991) 2 NWLR (pt. 171) 1, Kotoye v. C.B.N. (1998) 1 NWLR (pt. 98) 419 and Ajomale v. Yaduat No. 2 (1991) 1 S.C. 570 at 578; that it is ironical that the 1st appellant is asking for  an injunction pending the hearing of motion for a stay of execution, not an injunction pending appeal; that the application is bad in that there is no valid pending appeal upon which to predicate the application for injunction pending appeal vide National Pension Commission v. F.G.P. Ltd. (2014) 2 NWLR (pt. 1391) 378, U.B.A. Plc v. Ekanem (2010) 6 NWLR (pt. 1190) 207, Kode v. Yussuf (2001) 4 NWLR (pt. 703) 392, S.E.S. Ltd. v. Maersk (Nig) Ltd. (2001) 17 NWLR (pt. 743) 517; that with the pending motion for a stay, the present application is an abuse of the process of the court vide U.B.A. v. Mode Nig. Ltd. (2000) 12 NWLR (pt. 680) 16 at 22-23, Dingyadi v. INEC (2011) 10 NWLR (pt. 1255) 347 at 390-391, Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126 at 142; that it being money judgment the failure of the 1st appellant to make full and frank disclosure of her current financial status and sources of revenue makes the application bad vide A.M. Co. (Nig) Ltd. v. Volkswagen (Nig) Ltd. (2012) 11 NWLR (pt. 1312) 405 at 416, Olojede v. Olaleye (2010) 4 NWLR (pt. 1183) 1 at 43; that not having disclosed in the affidavit evidence that the 1st respondent as the judgment creditor will not be able to repay the money if the judgment debt is paid and she loses on appeal, the 1st appellant failed to establish one of the requirements for a grant of the application vide A.-G., Federation v. Ajayi (1996) 5 NWLR (pt.448) 283 at 289.

The 1st respondent argued that the 1st appellant is contesting the quantum of the indebtedness without disputing the general indebtedness and that in one breath the 1st appellant is complaining that its funds cannot be assessed pursuant to the garnishee order nisi and in another breath that the attached funds are minimal, therefore the 1st appellant would not suffer irreparable damage if the application is refused vide Awuse v. Odili (2003) 10 NWLR (pt.851) 116 at 161, Ajide v. Kelani (1985) 3 NWLR (pt.12) 248 on the admonition of superior courts that parties should not be allowed to approbate and reprobate; that impecuniosity is not a ground to grant a stay of a money judgment; and that a grant of the application will determine the substantive appeal vide U.B.N. Plc. v. Astra Building (W.A.) Ltd. (2010) 5 NWLR (pt.1186) 1, therefore the application should be dismissed.

The parties to the application for a stay of execution as indicated in the reply address of the 1st appellant do not include the 1st – 21st garnishees in the motions for a stay of execution and the parties in the two applications not being the same the issue of an abuse of the process of the court does not arise, in my modest view.

The powers of the Court under Order 4 rule 6 of the Rules of the Court stipulates that –

“The court shall have power to make orders by way of injunctions or the appointment of a receiver or manager, and such necessary orders for the protection of property or person, pending the determination of an appeal to it even though no application for such an order was made in the court below” (my emphasis).

So it was unnecessary to file the application first at the court below.  See also Mohammed v. Olawunmi (supra), City Express Bank Ltd. v. Lagos State Government (supra), and Josien Holdings Ltd. v. Lornamead Ltd. (1995) 1 NWLR (pt.371) 254, U.B.A. Plc v. Mode (Nig.) Ltd. (2000) 1 NWLR (pt.640) 220 at 270.

    Ground eleven of the second notice of appeal attached to the motion paper as Exhibit ZZ1 touches on the enforcement of the judgment by attachment of 1st appellant’s monies in banks operated by the 1st appellant therefore there is an appeal against the aspect of the case and the present application appears to be within the purview of the said appeal showing the application is predicated on a subsisting appeal.
    The Supreme Court held in the case of Kigo (Nigeria) Ltd. v. Holman Bros (Nigeria) Ltd. and Anor. (1980) 12 N.S.C.C. 204 at 209 – 211 as per the lead judgment of Eso, J.S.C. (as he was) that –

“It follows, therefore, that though the court has jurisdiction to preserve the res, once the matter is on appeal, the exercise of the jurisdiction, being a matter of the discretion of the court, would depend on the facts and circumstances in each case …………
Indeed from time immemorial, all courts of record, be they trial or appellate, possess power of preservation of the res in their custody, see Andler v. Duke (1932) 3 D.L.R. 210 as per McPhillips J.A. at p.220; see also The Zamora (1916) A.C. 77 …………
With respect, this legal proposition accords with common sense, for it is a well known fact that the court never acts in vain …………….
The wide power of the court to grant stay is further illustrated in the case of Wilson v. Church (No.1) 11 Ch.D 576.  In that case …… the Court of Appeal England granted injunction against trustees.  The court held that there would be an injunction to restrain the trustees from parting with any part of the fund till the hearing of the appeal …………. So far for inherent powers”.

See also the statutory power of the Court under Order 4 rule 6 of the Court of Appeal Rules 2011 (Rules of the Court) and section 15 of the Court of Appeal Act 2004.
    From the relevant facts in the affidavit evidence the sum of N800 million does not appear to be in dispute between the parties.  The 1st appellant appears, prima facie, to have admitted the indebtedness of that sum of N800 million in Exhibit K which reads:
        “SETTLEMENT OF OUTSTANDING DEBT TO ECO BANK
This is in reference to your letter dated the 2nd day of May, 2014 on the above subject matter.

2.    I write to inform you that Zamfara State Government has agreed in principle to the terms of settlement reached between the State government and your client, Ecobank.

3.    To that effect I hereby convey his Excellency’s approval to pay to Ecobank the sum of N800,000,000.00 (Eight Hundred Million Naira only) in full and final settlement of the state indebtedness to the Bank.
4.    The State Government will work with you to workout the modalities of effecting payment as agreed.
5.    Accept the assurances of the highest esteem of His Excellency, the Executive Governor of Zamfara State, at all times.”

The 1st respondent deposed to facts (supra) showing she is in a position to refund the judgment debt, in the event the appeal succeeds. The 1st appellant who is expected to depose to facts showing her ability to pay the judgment debt in the event a stay is granted and the appeal turns against her as is stated in the case of A.-G., Federation v. Ajayi (supra) cited by Mr. Ogunba, learned senior counsel for the 1st respondent, did not do so.   I think it is fair and just to refuse the application with respect to the N800 million that has been shown at first sight to have been admitted by the appellant as her indebtedness to the 1st respondent.

    Be that as it may, the balance of the judgment debt in the sum of N2,359,017,940.71k  has been contested by the 1st appellant.  The mode of enforcement of the judgment debt was challenged in ground eleven of the second notice of appeal attached to the reply affidavit to the 1st respondent’s counter affidavit as Exhibit ZZ1 thus –
        “GROUND ELEVEN:

The learned Trial Judge erred in law and contrary to sections 120, 121, 123, 162(4), 166 and 167 of the Constitution of the Federal Republic of Nigeria, 1999; as well as section 84 of the Sheriffs and Civil Process Act, Cap S6, Laws of the Federation of Nigeria, 2004, with respect to appropriation and attachment of public revenue of a State thereby occasioning a miscarriage of justice against the Appellants, when his lordship prematurely granted reliefs (d) and (e) in the writ of summons as part of the judgments.
(a)    The grant of relief (d) and (e) was against public policy, public interest and orderly functioning of Zamfara State Government under the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
(b)    The reliefs (d) and (e) were directed at public revenue of Zamfara State in the custody of the Federal Government and the Zamfara State Government.

(c)    Relief (d) and (e) are in the nature of garnishee proceeding which is independent of a suit;
(d)    Monetary Judgment Enforcement proceedings cannot be part of the substantive claim in a suit;
(e)    Monetary Judgment enforcement proceeding or attachment in execution of judgment against the Appellants as State Government entitles, in respect monies in custodial egis is required to be preceded by consent of Attorney General of the State or of the Federation under section 84 of the Sheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004 unless appropriated under a law.
(f)    The application and grant of consent in particular (e) was non-existent and was not ripe when the reliefs (d) and (e) were granted in the judgment.”

There are also grounds one, two, three and nine of the notice of appeal in Exhibit ZZ1 challenging the jurisdiction of the court below to entertain the action, while grounds four and five thereof challenge the entry of judgment on the undefended list procedure when there was evidence disputing the indebtedness and/or claim and, also, ground nine thereof challenges the violation of the mandatory provisions of section 99 of the Sheriffs and Civil Process Act, 2004.  These grounds of appeal appear at a glance to be formidable and/or arguable.  See Williams v. Busari (1973) 3 E.C.S.L.R. (pt.1) page 518, and Utilgas Ltd. v. Pan African Bank Ltd. (1974) N.S.C.C. 393, Adeleke (supra) and Reekitt and Colman (supra).  

    Also, the likelihood of bringing the affairs of government to the ground or grinding it to a halt if the judgment is enforced in its entirety tilts the balance of convenience in favour of the appellant for interim reprieve from the enforcement of the judgment pending appeal.  Public good should in the interim prevail in granting the application which I hereby grant in part to cover the garnishees though not parties to the appeal vide Kigo (supra) at 210 - 211 thus –
“… in the case of Wilson v. Church (No.1) 11 Ch.D 576, … there were two actions; but the plaintiffs in Wilson v. Church were not parties to the other action.  The trustees of the fund in issue were defendants in both cases.  The plaintiffs in Wilson v. Church, on the commencement of the second suit, (to which they were not parties) and which asked for declaration for the payment out of the trust fund to the plaintiffs in the second case, applied to the Master of the Rolls for an injunction to restrain the defendants/trustees in that second case from parting with any part of the trust funds.  The Court of Appeal in England granted injunction against the trustees ……  The effect of the judgment is that the Court granted the injunction binding the defendants/trustees from parting with the money to the plaintiffs in the second case though the plaintiffs in Wilson v. Church were not parties to that case”.  (My emphasis).
See also Otogbolu (supra), Alalade (supra).

    Accordingly, the application succeeds in part: The order of injunction is hereby refused with respect to the N800 million in question, while a restraint or injunction is hereby issued on the enforcement of the balance of the judgment debt of N2,359,017,940.71k in terms of the motion paper.  The substantive appeal shall be fixed for determination at the earliest opportunity and/or in the first sitting week after Easter Break this year.  The order opens the garnisheed accounts with respect to the N2,359,017,940.71k.  Parties to bear their costs.

SIDI DAUDA BAGE: I have read the judgment just delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA, and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.

For the reasons ably set out in the lead judgment, which I adopt as mine, I too abide by the consequential order made in the lead judgment.
 
 
YARGATA BYENCHIT NIMPAR, JCA: I had the privilege of reading in draft the judgment delivered by my learned brother, JOSEPH SHAGBAOR IKYEGH, JCA. I agree with the reasoning and conclusions arrived at in the ruling.
I have nothing more to add. I also allow the application in part and abide by the consequential orders made therein.

Counsel

1.    Mr. A. J. Owonikoko (SAN) (with Messrs I. J. Okechukwu And Miss C. E. Chuks-Nwolisa) for the Appellant.
2.    Mr. A. B. Ogunba (SAN) (with Mr. Duru, Atuluku And Philips) for the 1st Respondent.
3.    Mr. J. O. Onyekwelu for the 7th Garnishee.
4.    Miss I. O. Owa for the 2nd – 3rd Garnishee.
5.    Miss R. U. Nwandu for the 10th Garnishee.
6.    Miss G. Olley for the 12th Garnishee.
7.    Mr. B. A. Oyeni for the 8th Garnishee.