BARBEDOS VENTURES LIMITED v. FIRST BANK OF NIGERIA PLC (2016)

In The Supreme Court of Nigeria

On Friday, the 22nd day of January, 2016

SC.337/2013(R)

Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria
MUHAMMAD SAIFULLAHI MUNTAKA-COOMASSIE Justice of The Supreme Court of Nigeria
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria
CHIMA CENTUS NWEZE Justice of The Supreme Court of Nigeria


Between

BARBEDOS VENTURES LIMITED Appellant

AND

FIRST BANK OF NIGERIA PLC Respondent

…………………….A…………………….

IBRAHIM T. MUHAMMAD, J.S.C. (Delivering the Lead Ruling): Facts contained in the affidavit evidence of the parties to this interlocutory appeal reveal that the applicant is a liability company carrying on business as importers, exporters and general merchants with particular interest in the sale of fertilizer. The respondent is banker to the judgment debtor. In June 2008, the applicant was awarded a contract to supply Zamfara State Government, 12,500.00 metric tons of urea fertilizer at the cost of N1,462,000.00 (One Billion, Four Hundred and Sixty Two Million Naira) The applicant duly supplied the fertilizer but did not receive payment as agreed. Applicant went into arbitration with Zamfara State Government and they largely conceded to applicant’s claims. As a result, the Presiding Arbitrator made several awards to the applicant including interests and arbitration costs.
The applicant approached the High Court of Zamfara State for enforcement of the arbitral awards and applied for garnishee of Zamfara State Government funds with the respondent. The said High Court issued a garnishee Order NISI against the respondent, asking it to show cause why the Oder NISI should not be made ABSOLUTE.
The respondent filed its Garnishee’s affidavit of return and a further and better affidavit. After all entreaties, the High Court made the garnishee order NISI, ABSOLUTE against the respondent Aggrieved with the High Court’s decision, the respondent appealed to the Court of Appeal. The Sokoto Division or the Court of Appeal allowed the appeal and set aside the Order ABSOLUTE on the basis that the garnishee (i.e. respondent) has a charge on the debt. The appellant applicant was aggrieved with the Lower Court’s decision and it appealed to this court.
It is within the pendency of the appeal that the appellant filed this motion which sets out the following reliefs:
1. “AN ORDER directing the respondent to pay the sum of N2,340,772,726.00 (Two Billion, Three Hundred and Forty Million, Seven Hundred and Seventy Two Thousand, Seven Hundred and Twenty Six Nain) being the amount due to the appellant as at September 22nd 2014 pursuant to an arbitral award, into an interest yielding account in a reputable bank, which account shall be under the sole control of the Chief Registrar of this Honourable Court pending the determination of the appellant applicant’s appeal.
2. AN ORDER directing the respondent to pay to the above-mentioned account, whatever sum is calculated by the Chief Registrar to have accrued on the judgment-sum of N1,789,638,858 00 (One Billion, Seven Hundred and Eighty Nine Million, Six Hundred and Thirty Eight Thousand, Eight Hundred and Fifty Eight Nana), at the rate of 10% per annum (as ordered by the arbitral tribunal) from the above-mentioned dated of September 22, 2014 till the date this Honourable Court delivers its ruling an this application.
3. AN ORDER directing the Chief Registrar to forthwith place the sums or money referred la above on fixed deposit at the best ate available at any of the reputable banks in Nigeria and to open a separate account to facilitate the placement on fixed deposit, if necessary.
OR IN THE ALTERNATIVE TO THE ABOVE
4. AN ORDER granting accelerated hearing this appeal, so that same can be determined expeditiously and if judgment is given for the appellant, it can take urgent steps to liquidate its outstanding indebtedness to the respondent (which resulted from separate loan transactions) and reverse the negative credit rating that the Central Bank of Nigeria has placed an it due to the said debt.
AND
5. FOR SUCH OTHER ORDERS as this Honourable Court may deem fit to make in the circumstances.”
The Motion was supported by 8 grounds and a 69 paragraph-affidavit sworn to by one Malik Alfa Ahmadu, Esq. and some exhibits. The applicant filed a written address as well, supporting the motion.
The learned counsel for the respondent filed a counter-affidavit on 8/12/14. He also tiled on same dale a written address in opposition of the Motion on Notice.
This court heard the motion on the 3rd day of November, 2015. We held our conference on the application on Wednesday 11th of November, 2015. We considered all the depositions in the affidavit in support and the counter affidavit and we unanimously came to the conclusion that although the appeal was filed to this court in 2013, it involves heavy financial disputes affecting not only First Bank of Nigeria Plc as a Commercial Bank and another company, but also a State Government. My attention has been caught by some of the averments made by the parties. The applicant, in paragraphs 67 and 68 of affidavit in support deposed as follows:
“67 That in the event that this Honourable Court is not inclined to order payment into an interest yielding account, it would be just, as an alterative, far accelerated hearing to be granted.
68 That if this appeal can be determined in good time, the appellant can seek to pay back its debt to the respondent thereby avoiding bankruptcy and hopefully reversing the above-mentioned negative credit rating that is inter alia, affecting its ability to raise capital from other banks.”
The respondent, in its counter affidavit averred as follows:
“14. That country to the averments(sic) contained in paragraphs 43, 44 and 46 of the affidavit in support of the application, there is no GARNISHED MONEY in favour of the applicant with the respondent as at date.
15. That contrary to the averments contained in paragraph 45 of the affidavit is support of this application; the applicant is actually indebted to the respondent for credit facilities granted to it at its request. The outstanding debit balance of the facility together with accruing interest thereon at the rate of 21.5% stood at the sun of Two Billion Six Hundred and Seventy Million, Two Hundred and Twenty Seven Thousand, Eighty Eight Naira, Sixty Two Kobo (N2,670,227,088.62)
16. That as at the 19th day of September 2014, the outstanding debit balance in its account stood at the sum of Two Billon, Six Hundred and Ninety Six Million, Six Hundred and Eleven Thousand, Six Hundred and Fifty Three Naira, Eighty Nine Kobo (N2,696,611,653.89). A copy of letter of demand dated 19/9/2014 was shown to me and attached herewith marked as “Exhibit 3”.
17. That contrary to the averments in paragraph 53 of the affidavit in support of this application, there is no judgment

…………………….B…………………….

sum in favour of the applicant being utilized by the respondent for lending and other banking business.
18. That contrary to the averments contained in paragraphs 54, 55, 56, 57 and 58 of the affidavit in support of this application, the funds then standing in the account of Zamfara State Government has been utilized to set off part of its indebtedness to the respondent pursuant to the clear covenants contained in the agreements between the parties.
19. That by virtue of its banking license, the respondent is entitled to charge interest on loans it granted to is customers including the applicant and it is bound by law and regulations to submit its books to the Central Bank of Nigeria for examination.
20. That contrary to the averments contained in paragraph 59 of the affidavit in support of this application, the respondent did not in any way connive with Zamfara State Government in the operation of its accounts.
21. That I know as a fact that as at date, Zamfara State Government is still indebted to the respondent for credit facilities, hence there is no funds belonging to Zamfara State Government in custody of the respondent copies of accepted letters of offer of credit facility dated the 12th day of September, 2014 and 23rd day of September, 2014 were shown to me and attached herewith marked as “Exhibits 4 and 4A respectively.
22. That interest of justice will be better served by the refusal of this application as its grant will be highly prejudicial and work great hardship to the respondent.”
These are certainly weighty issues which need to be settled in good time and once and for all. It is not and it should not be the custom of any court of law to encourage delays in any proceeding between parties, especially where the economy of a state, corporation and or nation is at stake.
I am of the firm view that granting accelerated hearing of the main appeal will serve the proverbial interest of justice in this case. Accordingly, it is hereby ordered that both parties in this appeal, should, as a matter of urgency, take the right steps to settle their respective briefs of argument and liaise with the court’s registry for a possible date for hearing of the pending appeal in good time. See: Dumin Pharmaceutical & Chemical Co. Ltd. v Beneke Pharmaceutical & Cosmetics Ltd & 2 Ors (2008) 4 NWLR (Pt.1077) 376 at 407 – 408, D-A.
I make no order as to costs.
MUHAMMAD SAIFULLAH MUNTAKA-COOMASSIE, J.S.C.: I have read before now the lead judgment rendered by my learned brother Tanko Muhammad JSC, I agree with his reason and reasoning leading to his conclusion. I make no order as to costs.
OLABODE RHODES-VIVOUR, J.S.C.: I read in draft the leading Ruling delivered by my learned brother, I. T. Muhammad, JSC. I agree with his lordship that the arbitral award should remain with the Respondent, while accelerated hearing of the appeal is granted. The sum of N2,340,772,726 (Two Billion Three Hundred and Forty Million, Seven Hundred and Seventy Two Thousand Seven Hundred and Twenty-six Naira) is the amount due to the Appellant as at 22/9/2014, pursuant to an arbitral award.
An appeal is pending. While the appeal remains unheard, the Appellant wants the said sums paid into an interest yielding account pending the determination of the appeal OR that accelerated hearing of the appeal be granted.
The arbitral award of over two billion naira has been in the vaults of the Respondent Bank since 22/9/14. The Appellant/Applicant does not mind if the said sum remains with the Respondent, provided the hearing of the appeal is accelerated.
I agree with the Appellant. It would not be equitable when rights of the parties are still n to finally resolved to remove such a huge sum from the vaults of the Respondent. Such an act may drastically affect the Respondent business. The better course would be to grant accelerated hearing of the appeal to that the rights of the parties are finally decided, and the correctness of the arbitral award properly examined and pronounced upon.
For this, and the detailed reasoning in the leading Ruling, I grant accelerated hearing of the appeal. I agree with the further orders in the leading Ruling.
CLARA BATA OGUNBIYI, J.S.C.:- My learned brother Hon, Justice Tanko Muhammad, JSC had dealt exhaustively with the application in question. I agree without more that the interest and justice of this application will best be served if an order is made in favour of the alternative to reliefs 1, 2 and 3. In other words, I completely subscribe to the expeditious determination of this appeal and which should be given an accelerated hearing of same.
The application is hereby granted terms of the alternative relief and I also adopt the reason and conclusion arrived at in the lead Ruling.
An order of accelerated hearing of the appeal is endorsed by me as a matter of urgency and I further adopt all orders made therein the ruling and inclusive of costs.
CHIMA CENTUS NWEZE, J.S.C.: My noble Lord, Ibrahim Tanko Muhammad, JSC, obliged me with the draft of the leading Ruling just delivered now. I agree with the reasoning and conclusion.

Appearances

Chief O. E. B. Effiong (SAN) with him, Dr. George Ogunyome For Appellant

AND

Masud Alabelewa with him, T. O. Ishola, H. Suleiman and A. B. Abdulwahab For Respondent.

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