Loading ...An Anambra State High Court sitting at Ogidi, Idemili North Local Government Area, presided over by Justice Irene Ndigwe has dismissed a N22 million suit filed by Al-Kama Commodity Exchange (Nig) Plc against Premier Breweries Nigeria Plc, its owner, Prince (Engr.) Arthur Eze (OFR) and five commercial banks.
Delivering a judgement yesterday, Justice Ndigwe noted that after evaluation of the arguments canvassed by both parties, the court has to uphold the submissions of Dr. Anthony Orunkoya, counsel to Premier Breweries Plc, the defendant/judgement debtor.
The trial Judge ruled that it is only when proper parties are before the court that the court will assume jurisdiction to competently adjudicate on a matter as was held in the case of Okonta v Philips (2011) All FWLR (pt 568) 977 SC at 980 – 981, adding that if the enabling law provides name for a juristic or legal personality, a party must sue or be sued in that name.Justice Ndigwe further held that the court is under a duty to determine whether the relief sought in a Garnishee proceeding is the same with the award contained in the judgment sought to be enforced and where there is variance with award of the judgment sought to be enforced with the reliefs in the Garnishee, most particularly the amount, the court is under a duty to refuse the application.
Consequently, she dismissed the suit and discharged the defendant/judgement debtor, along side all the five commercial banks.
The plaintiff/judgment creditor, Al-Kama Commodity Exchange (Nig) Plc had in the suit, asked the court to freeze the account of Premier Breweries Nig. Plc with Sterling Bank, Access Bank, Fidelity Bank, Diamond Bank and First Bank because the Prince Arthur Eze owned Premier Breweries Nig. Plc is owing Al-Kama a total sum of N22,376,104.82 arising from business transactions.
Al-Kama Commodity Exchange (Nig) Plc had further asked the court to direct the Banks to pay him from the account of Prince Arthur Eze’s Premier Breweries Nigeria Plc, the sum of N22,376,104.82 being sum owed the plaintiff/judgment creditor for alleged supply of raw materials to the company.Earlier in his submissions, counsel to the plaintiff/judgment creditor, Prof. T. C. Eze had argued that judgment for the said sum was entered against Premier Breweries Nigeria Plc in 2006, adding that interest has accrued on the said judgment till date.
But in opposing the submission, counsel to Premier Breweries Plc, Dr. Anthony Orunkoya, argued that the application under Garnishee proceeding to enforce the said judgment of 2006 was statute barred taking into consideration the provisions of Section 20 (4) of the limitation of Actions law of Anambra State.
Orunkoya contended that action to enforce judgment must be instituted within 12 years, while action to enforce interest on any sum must be instituted within six years but the plaintiff/ judgment creditor’s action was brought 13 years after the period stipulated by law.
He further submitted that the judgment sought to be enforced was against Premier Breweries Nigeria Plc while the company served with the Garnishee proceeding is Premier Breweries Plc hence the name is different from that of the judgment debtor.
According to Orunkoya, “My Lord, no raw material was supplied to Premier Breweries Plc and my submission is that this action was instituted as a fraudulent act to extort money from my client for a non existing supply”.
“My Lord, may I also submit that a party who files an action against a defendant must be sure of the identity of whom he is suing. I refer the court to the case of Alhaji Atiku Abubakar & 2 ors v Alhaji Umaru Musa Yara’Adua & 5 ors NSCQR (2008) vol 36 part 1 page 231 at 246”.
Orunkoya posited that Premier Breweries Nigeria Plc does not exist as a corporate entity because the only company registered by CAC is Premier Breweries Plc. The judgment sought to be enforced therefore was brought against a non existing party in 2006, hence the onus is on the plaintiff/judgment creditor to prove by virtue of section 135 (1) of the Evidence Act that Premier Breweries Nigeria Plc was actually registered with CAC.
He also referred the court in evidence the certificate of incorporation of Premier Breweries Plc with Prince Arthur Eze as the chairman and submitted that by virtue of the certificate of incorporation of Premier Breweries Plc, it has been proved that the company is not Premier Breweries Nigeria Plc.
“It is equally my submission that the Plaintiff/Judgment creditor altered the judgment debt by the reliefs sought and the court being functus officio cannot alter the judgment as delivered because any judgment sought to be enforced, must be enforced precisely in the terms it was delivered”.Counsel to the banks, Elizabeth .O Olaniyi who held the brief of L.O. Okoji aligned with the submissions of Dr. Orunkoya and argued that the banks most especially Sterling Bank Plc does not have any account bearing the name Premier Breweries Nigeria Plc but has account bearing Premier Breweries Plc which identity is district from the party before the court.
The banks further submitted that an order to the bank to make any payment from any account must be the exact account bearing the name of the account holder.
