The Court of Appeal, Lagos Division has dismissed an appeal filed by the second national telecommunication carrier, Globalcom Limited challenging the ruling of Justice Mohammed Liman of federal high court over arbitral award of N2,033,561,222.53 made in favour of Mtn Communication limited.
In his lead judgement, Justice I B Gafai affirmed the Ruling of the lower Court, and resolved all the issues raised against the Appellant, (Globalcom).
Other members of the panel, Justice J S Ikyegh (presided) and Justice Ebiowei Tobi concurred with the lead judgement.
Justice Liman had in its Ruling delivered on November 29, 2019 in Suit marked FHC/L/CS/857/19 dismissed the Appellant’s (Globalcom) motion seeking to set aside the lower Court’s earlier Garnishee proceedings and Orders Nisi filed against it.
Dissatisfied with the Ruling, Globalcom in its Notice of Appeal marked CA/LAG/CV/1385/2019 filed on the 9th of December 2019, but deemed properly filed on the 30th of the June 2021, prayed the court to allow the appeal and set aside the ruling of the lower court.
The Appellant argued that the trial Judge erred in law when he held that multiple garnishee proceedings can be pursued concurrently by MTN communications limited (1st Respondent) against the Appellant in respect of the arbitral Award obtained against the Appellant.
The Appellant further argued that the trial judge erred in law and violated the Appellant’s right to a fair hearing, when he dismissed the Appellant’s motion dated 29th July, 2019 but filed 30th July, 2019 without considering all the legal issues raised by the Appellant in the Motion.
It argued that the application to enforce the arbitral award was filed on 22nd May 2019 while the Order for the enforcement of the award was made on 19th July, 2019, on which the court below had no jurisdiction to entertain the application at the time it granted leave to 1st Respondent to enforce the award.
Globalcom also argued that by section 8(I)(d) of the Limitation Law of Lagos State, MTN (1st Respondent) had six years to apply to the court for the enforcement of the award, submitting that more than 10 years had passed after the award was published before the application for its enforcement was made and granted.
It argued that the order made on 19th July, 2019 for the enforcement of the award was therefore made without jurisdiction and as such it was null and void.
However, in his lead judgement delivered on June 23, 2023, Justice I B Gafai affirmed the Ruling of the lower Court, and awarded cost of two million naira against the Appellant.
The court held “The hallmark of any garnishee proceeding is twofold: the expeditious attachment of funds belonging to a Judgment debtor in the custody of a third party and the satisfaction of the Judgment sum therefrom in favour of the Judgment Creditor. It is recognised that the Judgment debtor will become recalcitrant and evasive in satisfying the Judgment sum: which is the reason behind the relevant provisions in .
Sections 83 to 92 of the Sheriffs and Civil Process Act as well as those in the Judgment (Enforcement) Rules, the
Federal High Court (Civil Procedure) Rules and the various
State High Court Rules to compel a recalcitrant Judgment debtor through a civil process to comply with a Judgment Order.
“It is indeed even more deserving against a Judgment debtor who saw no reason to appeal against the Judgment and simply ignored the Judgment as if it never was. An adage has it: drastic situation calls for drastic solution; which is the reason for the enactment of special statutory provisions and Rules exclusively for the enforcement of Judegments by garnishee proceedings.
“It is important to contextualize the Appellant’s arguments on the alleged abusive nature of the 1st Respondent’s latter garnishee proceedings which the Appellant prefers to call “the Lagos Suit” in the light of the peculiar nature of garnishee proceedings.
“As explain earlier, there is no provision in the Sheriff and Civil Process Act or the two applicable Rules referred earlier herein which outlaws a second or another garnishee proceeding if the earlier one failed to satisfy the Judgment sum.
“The recurring argument by the Appellant’s learned counsel that the latter garnishee proceedings were commenced during the pendency of the earlier one is, with due respects, simply oblivious or in total disregard of the legal reality that the proceedings for the Order Nisi before the earlier Court had practically come to an end by the Court’s grant of the Order Nisi and so what was adjourned sine die by that Court was the second stage of the proceedings for an Order Absolute.
“Sadly for the 1st Respondent, the Order Nisi made in its favour by the earlier Court turned out to be very unsatisfactory to the 1st Respondent because out of the total sum of N856,829,599.69k (Eight Hundred and Fifty Six Million, Eight Hundred and Twenty Nine Thousand, Five Hundred and Ninety Nine Naira, Sixty Nine kobo) representing the debt recoverable under the Arbitral Award, only the sum of N39,923,557.05k (Thirty Nine Million, Nine Hundred and Twenty Three Thousand Five Hundred and Fifty Seven Naira, Five kobo) was disclosed by the garnishee banks in Abuja: leaving a whopping balance of N816,906,002.64k y Hundred and Sixteen Million, Nine Hundred and Six Thousand, Two Naira and Sixty Four kobo) which was a far cry from satisfying the Award sum.
“It is noteworthy here that at the time the 1st Respondent commenced the second garnishee proceedings, the Appellant had not as yet, as the Record shows, filed an Appeal against the Order Nisi by the Abuja Court. I agree with the learned counsel for the Respondent that the earlier Suit was already conclusive on the funds attached from the Judgment Debtor’s bank accounts.
“It is also striking that the Reliefs sought in both Suits are in reality different contrary to the argument of the Appellant. It is clear that the latter garnishee proceedings were for the unattached, balance of the Award sum and post Judgment interest totaling N2,033,561,222.53k (Two billion, Thirty Three Million, Five Hundred and Sixty One Thousand, Two Hundred and Twenty Two Naira, Forty Three kobo).
“I do not, with respects, agree also with the learned counsel for the Appellant’s argument that there is the risk of the Appellant’s funds garnished in excess of the Judgment debt. Any such fears, real or imagined, are easily allayed by the protective provisions of Order 8 Rules 5 (1) (b) of the Judgment (Enforcement) Rules.
“In any case, there is nothing in the Record to warrant such fear. If the Appellant is alarmed or outraged by the post Judgment interest claimed by the 1st Respondent, it may appear that it has forgotten the unappealed Panel Orders listed as numbers 5 and 6 in the Award that the Claimant shall not receive any sum as general damages in this matter. And that Award must be paid within 30 days from the date of the ruling. Upon failure, interest will be calculated on all due payments at NIBOR rates as Specified in the Interconnect agreement under Section 6.7 and 6.9.”
“All the issues having thus been resolved against the Appellant, this Appeal ends as one without merit and is accordingly dismissed. The Ruling of the lower Court is affirmed. I award cost of two million naira against the Appellant.”
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