By Davidson Iriekpen
Justice Ibrahim Buba of the Federal High Court in Lagos has fixed tomorrow to rule on the garnishee proceedings filed by some Ogoni chiefs from Ejama community in Rivers State against the Central Bank of Nigeria (CBN) and First Bank of Nigeria Limited for their failure to pay a N122 billion judgment debt against Shell Petroleum Development Company Limited (SDPC).
The judge also fixed the same day to rule on whether to jail the Chairman of First Bank, Mrs. Ibukun Awosika, for failing to pay the amount as ordered by a Federal High Court in Owerri, Imo State.
Justice Buba fixed the date after hearing all the applications filed by the different parties in the suit last Friday.
In the substantive suit, the Ogoni chiefs had sued the Royal Dutch Shell Plc, Netherlands; Royal Dutch Shell Plc, United Kingdom and SPDC over alleged oil spills that occurred when Shell operated in the community at the Federal High Court in Port Harcourt.
Justice Buba had in his judgment in 2010 awarded N17 billion to the representatives of the Ogoni people.
The court equally granted the Ogoni chiefs 25 per cent interest charge on the principal sum of about N17 billion.
SPDC had then appealed against the judgment and applied for a stay of execution of the judgment pending the appeal.
As a condition for granting the stay of execution, the court required Shell’s bankers, First Bank, to provide a guarantee of the judgment sum.
This condition was complied with. But Shell’s appeal failed at the Court of Appeal on technical grounds, ostensibly because it filed its processes out of time and without regularising them.
At the resumed hearing of the matter last Friday, lawyer to SPDC, O. Ochobi (SAN), informed the court of his client’s application dated and filed on January 22, 2018, seeking to join in the garnishee proceeding, and informed the court that he was yet to be served with all the processes in the suit.
He also told the court that the judgment creditors filed their written addresses in opposition to his motion out of time and without regularising it, adding that the applicants also failed to pay default for filing out of time, adding that it was contrary to Order 48 Rule 4 of the Federal High Court.
Responding to Ochobi’s application, lawyers to Ogoni chiefs led by Chief Lucius Nwosu (SAN) told the court that he had filed a counter affidavit to SPDC’s application.
Nwosu said the suit before the court is not against the party seeking to be joined but against the guarantor (First Bank).
He described SPDC as a meddlesome interloper. He therefore urged the court to dismiss SDPC’s application with punitive cost.
But the presiding judge, Justice Buba, after citing plethora authorities, granted SPDC’s application, and urged all parties in the suit to serve them with all the processes in the suit.
After the ruling on the SPDC’s application, lawyer to the First Bank, Chief Wole Olanipekun (SAN), told the court that after the ruling on the application seeking to join, if his clients, First Bank and its Chairman, Ibukun Awosika, would still be allowed to be a party in the suit following the ruling delivered by the court in favour of the SPDC.
Olanipekun informed the court that he had filed an application challenging the court’s jurisdiction to entertain the contempt suit.
Also, Professor Febian Ajogwu (SAN), counsel to the garnishee applicant (CBN), told the court that he had motion on notice dated January 19, 2018, with an affidavit deposed to Amaka A, with a written address dated and filed the same date. He also told the court that he filed a further affidavit deposed to by one Osita Nwosu together with a reply on point of law.
He said the application is seeking to set aside or dismiss garnishee order made by an Owerri division of the court in respect of the suit.
Ajogwu told the court that the order was made without compliance with the Section 84 of Sheriff and Civil Act, adding that the order must be made with the consent of the Attorney-General of the Federation (AGF).
He said for special emphasis, the order has to be made with AGF’s consent.
Ajogwu contended that there was no debtor-creditor between the parties.
The CBN counsel also stated that the CBN is not an indebtedness judgment creditor, and that it does not have the funds of the guarantor (First Bank).
Ajogwu also notified the court that the suit before the court is going on in parallel with the suit still pending before the Supreme Court, and that the funds sought to be attached by the creditors is not link with any account.
He therefore urged the court to set aside the order.
Responding, the Ogoni chiefs’ lawyer, Nwosu, told the court that he filed a garnishee application ex-parte on January 5, 2018, with an affidavit of 52 paragraphs, and plethora of exhibits, and a written address.
He also told the court that he had filed a counter affidavit to the garnishee’s application in opposition to set aside the order.
Nwosu contended that the exhibits attached with the application showed that the AGF consented, saying AGF’s reply to their letter on the order was interpreted as his consent.
He also stated that the exhibits showed the guarantee issued by the other banks, including Zenith, Access and Union Banks, adding that the exhibits also included a letter of negligence of the CBN’s lawyer.
The Ogoni lawyer told the court that Order 2, Rule 20 makes the surety a primary obligor, who had agreed to pay someone’s debit in the event the appeal of Shell failed at the Appeal Court.
He told the court that if it sees that the matter does not stop at appeal judgment, it should sue in entity, and award a punitive cost against him personally. But if the court sees that the garnishee stops at the appeal judgment, the court should order the garnishee to pay the money with substantive cost.
Nwosu said the action of the garnishee and the contemnors is a collusion one, as the garnishee filed its application to dismiss the order nisi four days after the contemnors filed theirs.
He urged the court to make the order nisi absolute, and dismissed the garnishee’s application with punitive cost.
Responding to Nwosu’s submission, Ajogwu urged the court not to make the order absolute, rather the court should dismiss it. He said it is important to rely of section 84 of Sheriff and Civil Act, as obtaining AGF’s fiat is a condition before garnishee proceeding could commence.
After listening to the submissions of all parties, Justice Buba adjourned till May 22, 2018, for ruling on both applications garnishee and contempt proceedings.