Justice Ibrahim Buba of the Federal High Court, Lagos has fixed Tuesday, May 22, to rule on the contempt suit filed against the chairman of First Bank Plc, Mrs. Ibukun Awosika, and the bank, brought against them by Ejama Community in Rivers state, over their failure to pay N122 billion judgment sum to the community as ordered by a Federal High Court.
Justice Buba fixed the date after hearing all applications filed by different parties in the suit on Friday.
The contempt proceedings was sequel to the refusal of First Bank to pay the N17 billion it guaranteed to pay on behalf of Shell Petroleum Development Company (SPDC) of Nigeria Limited.
In the substantive suit, 10 indigenes of Ejama Community in Ogoniland, Rivers State, had sue 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 Plc, 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 on Friday, lawyer to SPDC, O. Ochobi (SAN), informed the court of his client’s application dated and filed January 22, 2018, seeking to join in the garnishee proceeding, and informed the court that he is yet to be serve 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 regularize it, adding that the applicants also failed to pay default for filing out of time, this he said in 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 the SDPC’s application.
Nwosu said the suit before the court is not against the party seeking to be join, but against the guarantee, the First Bank Plc. He described SPDC as a meddlesome interloper and ‘Amebo’. He therefore urged the court to dismiss SDPC’s application with punitive cost.
But presiding judge, after citing plethora authorities, granted SDPC’s application, and urged all parties in the suit to serve them with all the processes in the suit.
After the ruling on the SDPC’s application, lawyer to the contemnors, Chief Wole Olanipekun (SAN) told the court that after the ruling on the application seeking to join, if his clients, First Bank Plc, and its Chairman, Ibukun Awosika would still be allow to a party in the suit following the ruling delivered by the court in favour of the SDPC.
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, told the court that he has motion on notice dated January 19, 2018, with an affidavit deposed to Amaka A., with a written address dated and filed 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 nisi made by an Oweri division of the federal high court in respect of the suit.
He told the court that the order nisi was made without compliance with the Section 84 of Sheriff and Civil Act, this he said must be made with the consent of Attorney-General of the Federation (AGF).
Ajogwu (SAN) said for special emphasis, the order nisi have to be made with AGF’S consent. And that whether failure to serve form 46, on the garnishee, as there is no debtor-creditor between the parties.
He also stated that the garnishee is not indebtedness guarantee, as the garnishee does not have the funds of the guarantors.
Ajogwu (SAN), also notified the court that the suit before a Federal high 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 garnishee is not link with any account.
He therefore urge the court to set aside the order nisi.
Responding, Ogoni’s lawyer, Nwosu (SAN) told the court that he filed a garnishee application ex-parte on January 5, 2018, with an affidavit of 52 paragraph, 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 nisi.
Nwosu (SAN), the exhibits attached with the application shows that AGF consented, which he said was AGF reply to their letter on the order.
He also stated that the exhibits showed the guarantee issued by the other banks, which includes: Zenith, Access and Union. Adding that the exhibits also include a letter of negligence of the CBN’s lawyer.
Ogoni lawyer told the court that Order 2 Rule 20 make the surety a primary obligor, who has stand to pay someone’s debit, in the event the appeal of the Shell failed at Appeal court, then the matter end.
He told the court that if it see that the matter does not stop at appeal judgment, it should suit in entity, and award a punitive cost against him personally. But if the court see that the garnishee stops at the Appeal judgment, the court should order the garnishee to pay the money with substantive cost.
Nwosu (SAN) 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 (SAN), 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.
He said the exhibits tendered as AGF’s consent by the judgement creditor does not reflect true consent of AGF. He said part of AGF’s reply to their letter which he said was signed by someone from Ministry of Justice, read, “am not in position to grant or decline the application”.
Ajogwu (SAN) said the reply should not be taken as AGF’s consent to the garnishee proceeding, he therefore urged the court to strike out the application.
On the contempt proceeding, Chief Wole Olanipekun (SAN), lawyer to First Bank and its chairman, Ibukun Awosika, told the court that he had filed a motion dated January 31, 2018, with 81 paragraph affidavit deposed to by one Gbenga Shadu, alongside 23 exhibits, and a reply on point of law dated and filed in May 16, 2018.
Olanipekun (SAN) while relied on
all the processes filed urged the court to set aside the order nisi made by the Owerri division of the court. He said the order nisi was made by a court that has no nexus with case, and that if the court see First Bank as liable for the judgment against SPDC.
Supporting his submission, Olanipekun (SAN) cited section 82 of the Sheriff and Civil proceeding, and Order 8 Rule 8(1) of the judgment enforcement rule, which he said make it mandatory for court to first hear the garnishee/guarantee before determine garnishee proceeding.
He also told the court that there was no response to all that he had filed, consequently, he told the court that “our application is not controverted”. He also told the court that the court did not give judgment on N122 billion but N17 billion.
Citing series of authorities, Olanipekun (SAN), urged the court to allow his application, and set aside the order nisi or dismiss it.
In response, the judgment creditors lawyer, Nwosu (SAN) said the Owerri division of the court presided over by Justice L. Alagba, has jurisdiction to make the order nisi, by the constitution of Nigeria, adding that the court also awarded a cost of N300, 000, against the first bank.
He also told the court that the money increased to N122 billion due to interest as ordered by the court. He therefore urged to dismiss the First bank application, and make the order nisi absolute with punitive cost.
On the contempt proceeding, the contemnors lawyer, urged the court to strike out or dismiss the entire proceeding, for been incompetent, as the Form 48 and 49 were issued without any affidavit, and inclusion of the order that was disobeyed.
In urging the court to dismiss the suit, Olanipekun (SAN) said they have filed a motion on notice dated March 19, 2018, with a seven-paragraph affidavit, and a seven exhibits, and a written address dated and filed on May 20, 2018.
He also told the court that he had filed a reply on point of law, adding that application for contempt which the court will decline to take, because it is not contempt in the face of the court and order of the court. He cited Section 72 of the Sheriff and Civil Procedure Act, to support his argument.
In opposition to the contemnors’ application, the judgement creditor lawyer, said they have filed a written address as a reply to the motion on notice for dismissal of their suit.
He also told the court that on the preliminary objection filed, and that the contempt proceeding commenced on Form 48 and 49, which he said have been administered on the contemnors.
He also stated that the contemnors have disobeyed an order of the court and form 48 and 49 is a warning that they are about to be convicted for disobeying a court order.
Citing Odu and Jolaoso, 2005, part 262 Federal Weekly Law Report, page 428, he urged the court to move his motion to the contemnors’ committal, adding that the motion on notice was pursuant to the order of the court, which was not opposed. He therefore urged the court to dismiss the contemnors preliminary objection.
On the second preliminary objection filed by the contemnors, Olanipekun (SAN) told the court that the application was filed in March 28, 2018, seeking dismissal of the judgement creditors’ motion on notice which was filed on March 6, 2018. He said the application attached with 11 exhibits, and that it was filed after the judgment creditors had filed Form 49.
