ZENITH BANK PLC v. CHIEF ARTHUR JOHN & ORS

CORAM

PARTIES

ZENITH BANK PLC APPELLANTS

CHIEF ARTHUR JOHN & ORS

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiffs/Respondent at the Federal High Court claimed some monetary reliefs against Shell Petroleum Development Company of Nigeria Limited (SPDC) wherein the court awarded the sum of N1, 849,187,568.00 in favour of the Respondent. SPDC appealed against the judgment of the trial court and subsequently applied and obtained an Order for conditional stay of execution of the trial court’s judgment. They thereafter provided a Zenith Bank Guarantee (“Zenith BG”) dated 28th October, 2009 to cover the judgment sum pending the determination of the appeal. The lower court in delivering its judgment allowed same in part and reduced the judgment sum awarded by the trial court. Further dissatisfied, SPDC appealed against the lower court’s judgment and applied to the lower court for a stay of execution of its judgment pending the determination of the appeal to the Supreme Court. Whilst the suit and application was still pending in the Supreme Court and lower court respectively, the Respondent instituted an Undefended List Proceeding vide Suit No. PHC/1690/2010 at the High Court of Rivers State between Chief Arthur John &Ors v Zenith Bank to enforce the Zenith BG which is subject of appellate proceedings and a result of the instant appeal. The Applicant informed the court of the pending suit and motions before the appellate courts and urged the court to suspend the instant proceeding. The trial court however proceeded to enter judgment enforcing the Zenith BG in favour of the Respondents. Being dissatisfied with the trial court’s decision, the Applicant appealed to the Court of Appeal while the Respondents commenced garnishee proceedings and consequently obtained a garnishee Order absolute against the Central Bank of Nigeria in order to enforce the judgment of the trial court and thereby foist a fait accompli on the Court of Appeal with regard to the Applicant’s pending appeal thereat and earlier pending motion to stay enforcement of the same Bank Guarantee which the trial Court subsequently enforced. In its ruling, the lower court granted SPDC’S pending motion to stay enforcement of the same Zenith BG and ordered a conditional stay of execution of its judgment in the sum of N1,049,187,658.00 pending the determination of SPDC’s SC.33/2011 at the Supreme Court and directed SPDC to provide a bank guarantee to secure the said Judgment sum. The Lower Court eventually dismissed the Applicants CA/PH/436/2010 following which the Applicant further appealed to this Honourable Court and filed the instant application for an unconditional stay of execution.

HELD

Application Dismissed

ISSUES

1. Whether the Applicant is entitled to the grant of the orders sought in the application?

RATIONES DECIDENDI

PRELIMINARY OBJECTION -AIMS AND OBJECTIVES OF PRELIMINARY OBJECTIONS

“In the case of SPDC v Amadi (2011) 14 NWLR (Pt.1266) 157 at 192 where this Court held thus:-
“Preliminary Objection is the procedure to be adopted where a respondent opposes to the hearing of an appeal, the purpose of preliminary objection is to terminate the hearing of an appeal in limine either partially or totally…. It must be emphasised that by Order 2, Rule 9 (1) the procedure is adopted only for the hearing of an appeal and not for any other process.”

PRELIMINARY OBJECTION – PURPOSE OF A PRELIMINARY OBJECTION

From the same line of thought of the case above, cited is Contract Resource Nigeria Ltd v. United Bank for Africa Plc (2011) 5 CLRN 17 at 21, this apex court said:
“The purpose of a preliminary objection is to contend that the appeal is defective or incompetent. If sustained, the appeal would no longer be heard. A successful preliminary objection terminates the hearing of an appeal.”

PRELIMINARY OBJECTION -WHETHER PRELIMINARY OBJECTIONS INTENDED ONLY FOR SUBSTANTIVE APPEALS ADMITS OF ANY EXCEPTION?

“It cannot be said that preliminary objections intended only for substantive appeals are to be taken as a blanket situation to which no exceptions exist or peculiarities which have to be viewed in context”.

GARNISHEE ORDER ABSOLUTE -MEANING OF GARNISHEE ORDER ABSOLUTE

“A Garnishee Order Absolute means an executed judgment and being a completed act, one wonders how an order of stay can either be ordered or carried out. In this regard, I refer to A. G. Anambra State v Okafor (1992) 2 NWLR (Pt. 224) 396 at 430; Badejo v Federal Minister of Education (1996) 1 NWLR (Pt.464) 15”.

ADMINISTRATION OF JUSTICE – ADMINISTRATION OF JUSTICE HAS NO ROOM FOR DRIBBLING

“The administration of justice has no room for the dribbling as usually seen in football fields of play while a successful party is made to suffer when justice is on its side. See Okafor v Nnaife (1987) 4 NWLR (Pt.64) 129 at 137 NNPC v Famfa Oil Ltd (2009) 12 NWLR (Pt. 1156) 462 at 481”.

GARNISHEE PROCEEDING – A GARNISHEE PROCEEDING IS ONE OF THE MODES OR METHODS OF ENFORCEMENT OF A JUDGMENT DEBT

“It is not in dispute that a garnishee proceeding is one of the modes or methods of enforcement of a judgment debt”.

ORDER OF STAY OF EXECUTION- WHETHER THE COURT CAN ORDER A STAY OF EXECUTION OF AN EXECUTED JUDGEMENT

“It is settled law that once an execution is completed you cannot order a stay of execution of the judgment already executed. To ask for stay of execution of an executed judgment is like offering a dead man medicine intended to cure his ailment. Put another way, closing the stable after the horse had bolted. Such a request is not grantable by a court of law which does nothing in vain.”

EXECUTION OF JUDGEMENT – PROPER APPLICATION TO BE MADE WHERE EXECUTION HAD BEEN LEVIED

“In a situation where execution had been levied, the proper application is for an order of court setting aside the writ of attachment or execution if actual execution had not been carried out.
The same principle applies to an order of injunction, either interim, interlocutory or perpetual. It cannot be granted to restrain the carrying out of an already completed act.”

APPLICATION FOR INJUNCTION OR STAY OF EXECUTION – WHETHER AN INJUNCTION OR STAY CAN PROCEED AGAINST A COMPLETED EVENT

“An injunction or stay does not proceed against a completed event”.

CASES CITED

NONE

STATUTES REFERRED TO

Constitution of the Federal Republic of Nigeria 1999 (as amended)

Sheriffs and Civil Process Act

Supreme Court Rules

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