FBN PLC v. INTERTECH RESOURCES LTD & ORS (2020)

FBN PLC v. INTERTECH RESOURCES LTD & ORS

(2020)LCN/14858(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, December 14, 2020

CA/B/415/2016

RATIO

APPEAL: WHERE SHOULD ISSUES FOR DETERMINATION BE DISTILLED FROM

It is now beyond argument, as it is trite in law that issues for determination must be distilled from competent grounds of appeal and thus they cannot stand in vacuo. Therefore, in law an issue for determination not founded upon or derivable or distilled from a competent ground or grounds of appeal is utterly incompetent and must be discountenanced. See Association of Senior Civil Servant Taraba State Branch & Ors .V. Jusun & Ors (2014) LPELR – 24185 (CA) Per Georgewill JCA @ p. 23. See also Roba Investment Ltd V. Arewa Metal Containers Ltd (2010) LPELR 4900; Peter V. Okoye (2002) FWLR (Pt. 110) 1864; Lambert V. Nigerian Navy (2006) 7 NWLR (Pt. 950) 54; Borishade V. NBN Ltd (2007) 1 WLR (Pt. 1015) 217; Oniah V. Onyia (1989) 1 NWLR (Pt. 99) 514; Ugo V. Obiekwe (1989) 1 NWLR (pt. 99) 566; Aja V. Okoro (1991) 7 NWLR (Pt. 203) 260; Osafile V.Odi (1994) 2 SCNJ 1; Akinwunmi Giwa V. Hon. Ola Jejelola (2014) LPELR – 22692(CA). PER GEORGEWILL, J.C.A.
APPEAL: WHETHER A RESPONDENT WHO DID NOT FILE A CROSS APPEAL CAN FORMULATE ISSUES FOR DETERMINATION

It is also settled in law that a Respondent who did not file a cross appeal is not at liberty to formulate issues for determination that have no relevance or bearing with or linkage to the grounds of Appeal. In other words, a Respondent in raising issues for determination must confine and circumscribe his issue within the existing competent grounds of appeal of the Appellant. In law therefore, an issue for determination, such as issue two in the Respondents’ brief, raised by a Respondent who has no cross appeal but which has no bearing or relevance to the grounds of appeal of an Appellant should go to no issue and ought to be discountenanced by the Court in its judgment. I hereby so discountenance the Respondents’ issue two as going to no issue in the determination of this appeal. See Association of Senior Civil Servant Taraba State Branch & Ors .V. Jusun & Ors (2014) LPELR – 24185 (CA) Per Georgewill JCA @ p. 23. PER GEORGEWILL, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TO INTERFERING WITH THE PRIMARY DUTY OF THE TRIAL COURT

Consequently, once a trial Court had carried out this primary duty correctly and come to a right conclusion and sound decision in its judgment that is the end of the matter as no appellate Court worth its name and honor would interfere where the conclusion reached by the trial Court was right and its decision sound on the evidence as led before it. See TSA Industries Ltd. V. Kema Investments Ltd. (2006) 2 NWLR (Pt. 964) 300. See also Agbomeji V. Bakare (1998) 9 NWLR (Pt. 564) 1; Okada Airlines Ltd. V. FAAN (2015) 1 NWLR (Pt. 1439) 1@ p. 23.
It is thus the law that it is only when a trial Court had not carried out its primary duty correctly or shirked from its responsibility to do so or had reached wrong conclusions not flowing from the admitted evidence before it or has misapplied the relevant principles of law to the established facts before it and had in all these instances occasioned a miscarriage of justice that an appellate Court will be duty bound to interfere to re – evaluate the evidence on the printed record, particularly in circumstances not involving the credibility of witnesses to make proper findings as justified by the evidence on the printed record. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also CSS Bookshop Ltd. V. The Regd. Trustees Muslim Community in Rivers State (2006) 4 SCM 310; Mogaji V. Odofin (1978) 4 SC 91; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806
An appellate Court would therefore, readily interfere to re-evaluate the evidence in the printed record if is shown that the findings or decisions of the trial Court was perverse in that the conclusion drawn from the proved facts does not flow there from or runs contrary to such proved facts PER GEORGEWILL, J.C.A.

JUDGMENT: WHETHER EVERY ERROR WILL LEAD TO THE REVERSAL OF A JUDGMENT

However, it is not the law that a judgment of a Court is bound to be reversed on account of every error found in it but rather the law is that an error that will lead to a reversal of the judgment of a Court must be one that is substantial and had caused a miscarriage of justice. SeeOladele V. Aromolaran II (1996) 6 NWLR (Pt. 453) 180. See alsoNBC Ltd. V. Olarewaju (2007) 5 NWLR (Pt.1027) 255; Okada Airlines Ltd. V. FAAN (Supra) @p. 22; Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247. PER GEORGEWILL, J.C.A.

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

FIRST BANK OF NIGERIA PLC APPELANT(S)

And

1. INTERTECH RESOURCES LIMITED 2. CHARLES APIKOLO JAMES 3. UYI ASEMOTA RESPONDENT(S)

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Edo State, Coram: A. Edodo – Eruaga J., in Suit No. B/13A/2013: Interchange Resources Limited & Others V. First Bank Nigeria Plc & Ors., delivered on 18/5/2016, wherein the Ruling of the Chief Magistrate’s Court Evbuoriaria dismissing the Garnishee proceedings of the Respondents against the Appellant was set aside and an Order of Garnishee Absolute entered against the Appellant in favour of the Respondents.

The Appellant was dissatisfied with the said judgment and promptly appealed against it vide a Notice of Appeal filed on 26/5/2016 on two grounds of appeal at pages 195 – 197 of the Record of Appeal. The Record of Appeal was transmitted to this Court on 27/10/2016 but was deemed as properly transmitted on 4/4/2019. The Appellant’s Brief was filed on 17/4/2019. The Respondent’s was filed on 1/6/2020 but was deemed as properly filed on 16/9/2020. The Appellant’s reply brief was filed on 28/9/2020.

At the hearing of this appeal on 18/11/2020, M. I. Solomon Esq., learned counsel for the

Appellant, appearing with O. Okunkpolor Esq., and Victor Nna Esq., adopted the Appellant’s brief and reply brief as their arguments and urged the Court to allow the Appeal and set aside the judgment of the Court below and dismiss the entire Garnishee proceedings of the Respondents against the Appellant. On her part, Miss O. R. Ehimien learned counsel for the Respondents adopted the Respondents’ brief as her arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By a Notice of Appeal filed on 22/8/2014, the Respondents as Garnishees before the Chief Magistrate’s Court Evbuoriaria appealed against the Judgement of the said Chief Magistrate’s Court to the Court below and seeking to set aside the said judgment entered in favour of the Appellant as Garnishor on the ground that the learned Chief Magistrate erred in law when he dismissed the Garnishee proceedings against the Appellant on 22/8/2014. See pages 90 – 92, 93 – 102 of the Record of Appeal.

BRIEF STATEMENT OF FACTS:
The gist of this case as regards the parties in this appeal in the Garnishee proceedings before the Chief

Magistrate and on appeal before the Court below can be gleaned from the depositions in their affidavits and Counter affidavits before the Chief Magistrate’ Court Evbuoriaria. The Respondents had earlier obtained judgment against the Inspector General of Police and other Officers of the Nigeria Police and which judgment sum had remained unpaid and they had resorted to the garnishee proceedings to enforce the said judgment. The order of Garnishee nisi was made by the Chief Magistrate. Upon it being served on the Appellant it filed an affidavit to show cause to which the Respondents filed a Counter Affidavit. Upon receipt of the Counter affidavit filed a further affidavit and attached a motion dated 12/5/2014 to show that the matter was still pending in Court and that Judgment has not been delivered as at the time of the Application for Garnishee Order was made. On 22/8/2014, the Chief Magistrate Court delivered its ruling, wherein it held that the Respondents’ garnishee proceedings lacked merit and same was dismissed. The Respondents were dissatisfied and had appealed to the Court below by a Notice of Appeal filed on 22/8/2014. The defence of the

Appellant was that the accounts sought to be garnisheed do not belong to any of the judgment debtors as it had no contractual relationship with them. See pages 1 – 7, 29 – 30, 34 – 37, 42 – 43, 64 – 65, 68 – 70 of the Record of Appeal.

The parties filed and exchanged their appellate briefs before the Court below and the appeal was heard on 9/3/2016. In its Judgment delivered on 18/5/2016, the Court below allowed the appeal of the Respondents and made the Garnishee Order Nisi Absolute against the Appellant in satisfaction of the Judgment debt due payable to the Respondents from the Judgment Debtors, hence this appeal. See pages 181 – 194, 195 – 197 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, a sole issue was distilled as arising for determination from the two grounds of appeal, to wit:
Whether the learned judge did not misdirect himself when he held that the trial Magistrate did not evaluate the evidence before him while discharging the Garnishee?

In the Respondents’ brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether the Court below was

not right in law to have evaluated the evidence of the parties which the learned trial Court failed or refused to evaluate?
2. Whether it is the duty of the Appellant to fight the cause of the Judgment debtors?

Now, before narrowing down on the proper issues for determination in this appeal, our attention had been drawn, and quite aptly too, by the learned counsel to the Appellant in the reply brief to the proprietary or otherwise of issue two as distilled in the Respondents’ brief. I have given due consideration to this contention and looked carefully at the two grounds of appeal in the light of issue two in the Respondents’ brief.
The two grounds of appeal are as follows:
1. The learned Judge erred in law when he held that the learned Trial Chief Magistrate did not evaluate the evidence before him and set aside the ruling of the trial Chief Magistrate
2. The learned Judge erred in law when, in a Garnishee proceeding, he granted an Order Absolute against the accounts which do not belong to the judgment debtors

Issue two as formulated by the Respondents in the Respondents’ brief runs thus:

“Whether it is the duty of the Appellant to fight the cause of the Judgment debtors”
Regrettably, issue two as above was not stated to be tied to any of the two grounds of appeal. Be that as it may, the simple question is whether the above issue two as formulated by the Respondents arises from any of the two grounds of appeal and whether it is competent?
My lords, I have no inkling of doubt in my mind that the Respondents’ issue two as shown above does not arise from any of the Appellant’s two grounds of appeal as earlier set out in this judgment and in the absence of any cross appeal by the Respondents, they do not possess the power or right or liberty to formulated issues outside the purview of the Appellant’s two grounds of appeal. It is now beyond argument, as it is trite in law that issues for determination must be distilled from competent grounds of appeal and thus they cannot stand in vacuo. Therefore, in law an issue for determination not founded upon or derivable or distilled from a competent ground or grounds of appeal is utterly incompetent and must be discountenanced. See Association of Senior Civil Servant Taraba State Branch & Ors .V. Jusun & Ors (2014) LPELR – 24185 (CA)

Per Georgewill JCA @ p. 23. See also Roba Investment Ltd V. Arewa Metal Containers Ltd (2010) LPELR 4900; Peter V. Okoye (2002) FWLR (Pt. 110) 1864; Lambert V. Nigerian Navy (2006) 7 NWLR (Pt. 950) 54; Borishade V. NBN Ltd (2007) 1 WLR (Pt. 1015) 217; Oniah V. Onyia (1989) 1 NWLR (Pt. 99) 514; Ugo V. Obiekwe (1989) 1 NWLR (pt. 99) 566; Aja V. Okoro (1991) 7 NWLR (Pt. 203) 260; Osafile V.Odi (1994) 2 SCNJ 1; Akinwunmi Giwa V. Hon. Ola Jejelola (2014) LPELR – 22692(CA).
It is also settled in law that a Respondent who did not file a cross appeal is not at liberty to formulate issues for determination that have no relevance or bearing with or linkage to the grounds of Appeal. In other words, a Respondent in raising issues for determination must confine and circumscribe his issue within the existing competent grounds of appeal of the Appellant. In law therefore, an issue for determination, such as issue two in the Respondents’ brief, raised by a Respondent who has no cross appeal but which has no bearing or relevance to the grounds of appeal of an Appellant should go to no issue and

ought to be discountenanced by the Court in its judgment. I hereby so discountenance the Respondents’ issue two as going to no issue in the determination of this appeal. See Association of Senior Civil Servant Taraba State Branch & Ors .V. Jusun & Ors (2014) LPELR – 24185 (CA) Per Georgewill JCA @ p. 23.
It is perhaps for the above reason more than any other reasons that the law has gone even further to the position that not only is an issue for determination raised by a Respondent without a cross appeal but which has no relevance to the grounds of Appeal of the Appeal incompetent but that all arguments canvassed thereon should also be discountenanced as going to no issue also. Consequently, I hereby also discountenance all the submissions under the Respondents’ issue two as going to no issue in the proper determination of this appeal on the issue properly arising from the Appellant’s two grounds of appeal. In Fajebe V. Opanuga (2020) All FWLR (Pt. 1041) 162 @ p. 169, the Supreme Court had stated inter alia thus:
“A Respondent who has not filed a cross appeal nor a respondent’s notice is not permitted to raise an issue not

predicated on the ground of appeal filed by an appellant. Any issue which is not connected to the grounds of appeal is irrelevant, goes to no issue and the argument thereon should be discountenanced by the Court.
See also AG. Lagos V. Eko Hotels Ltd. (2018) 7 NWLR (Pt. 1619) 518; Ekweozor & Ors V. R.T. S.A.C.N. (2020) VOL. 302, LRCN.

In the circumstances therefore, the only issue arising for determination in this appeal is the sole issue as distilled in the Appellant’s brief, a consideration of which, in my view, would involve a due consideration of the only competent Respondents’ issue one.

SOLE ISSUE
Whether the learned judge did not misdirect himself when he held that the trial Magistrate did not evaluate the evidence before him while discharging the Garnishee?
APPELLANT’S COUNSEL SUBMISSIONS
On the sole issue learned counsel for the Appellant had submitted that the Chief Magistrate carried out proper evaluation of the evidence of the parties before arriving at its finding that the Appellant had no relation with the judgment debtors and that the accounts sought to be garnisheed do not belong to any of

the judgment debtor belong but to the Nigeria Police as in Exhibit A, and the other account to Edo Commands Security Operations and contended that the Court below was wrong when it interfered with the proper evaluation and correct findings of the Chief Magistrate Court and urged the Court to allow the appeal and set aside the judgment of the Court below and restore the sound impeccable decision of the Chief Magistrate dismissing the Garnishee proceedings for lacking in merit. Counsel relied onIkegbunam V. Onwubuya (2007) All FWLR (Pt. 345) 379 @ p. 390.

It was also submitted that the Chief Magistrate Court carried out substantial evaluation sufficient to enable it arrive at the correct conclusion it reached to discharge the Appellant/Garnishee and contended that in law evaluation of evidence and the ascription of probative value to such evidence are within the primary province of a trial Court and once it has properly carried out its duty, it is not the business of an appellate Court to substitute its views for those of the trial Court and urged the Court to hold that the Court below was in grave error when it set aside the decision of the Chief Magistrate

Court merely to substitute its own views for the views of the Chief Magistrate Court and to allow the appeal and restore the decision of the Chief Magistrate Court. Counsel relied onAgbeje V. Ajibola (2002)93 LRCN 17

It was further submitted that the finding of the Court below that the accounts sought to be garnisheed belonging to the Nigeria Police and Edo Command Security Operations belonged to the judgment debtors was erroneous and contended that the account numbers 2015957052 and 2022508814 do not belong to any of the judgment debtors but rather belonged to two separate juristic personalities who are not the judgment debtors against whom the judgment was sought to be enforced and urged the Court to hold that since none of the judgment debtors was a customer of the Appellant and with whom it has no binding contractual relationship of Banker and Customer, the decision of the Court below to make the Garnishee Order Nisi Absolute was in grave error and should be set aside and the appeal allowed. Counsel relied onFirst Bank Of Nigeria Plc V. Akiri (2014) All FWLR (Pt. 739) 1130 @ p. 1150.

It was also further submitted that the Court below was in

grave error when it held that the two accounts belonging, numbers 2022508814 in the name of Edo Command Security Operations and account number 2015957052 in the name of the Nigeria Police cannot be divorced from the 2nd and 4th Respondents and contended that in law these persons or institutions were not parties to the judgment sought to be enforced and urged the Court to hold that a judgment of the Court cannot be enforced against persons who were not parties to the case from which the judgment emanates and to allow the appeal and set aside the perverse judgment of the Court below. Counsel relied on Green V. Green (2001) 45 WRN 90 @ p. 108.

It was also submitted that in law setting off of a credit balance against an overdraft of the same customer in the same branch or two branches of the same bank is permissible and is commonly referred to as combination/consolidation or set-off of accounts since the Bank has right to combine two separate accounts of a customer held in his own right but contended that a Bank has no right to combine two different accounts held in different names without the agreement of the Customers and urged the Court to so hold and to

set aside the perverse decision of the Court below consolidation and arrogating to the judgment debtors accounts that do not belong to them and to allow the appeal. Counsel relied on Co – Operative Bank of Eastern Nigeria Limited V. Eze (1976 – 1984)3 NBLR 521 @ p. 537;British And French Bank Limited V. Opaleye (1962) NSCC 2; United Bank For Africa Plc V. Alims (Nigeria) Limited, (2008) All FWLR (Pt. 435) 1738 @ pp. 1750 – 1751; Asman Man And Mech. Co. Limited V. Spring Bank Plc (2012) All FWLR (Pt. 613) 1864 @ p. 1895.

RESPONDENTS’ COUNSEL SUBMISSIONS
On his issue one, learned counsel for the Respondents had submitted that the Garnishee’s case as set out in the Garnishee proceedings is that the affidavit to show cause claimed that none of the Judgment Debtors owns or operates Account No. 2015957052 and 2022508814 belonging to the Nigeria Police and the Edo Command Security Operations with the Appellant and contended that in law in a Garnishee proceeding where the Garnishee claims as against the Judgment Creditor that an account does not belong to the Judgment Debtor, the proper thing for the Court to do is to evaluate the evidence proffered

and urged the Court to hold that the Court below having found that the Chief Magistrate Court had abdicated its primary duty of evaluating the evidence before it was right to have re – evaluated the evidence and come to the proper findings flowing there from that those accounts cannot be divorced from the 2nd and 4th Respondents and thereby making the Garnishee Order Nisi Absolute and to dismiss the appeal for lacking in merit. Counsel relied on Oyekola V. Ajibade (2004) 32 WRN 134 @ p. 139; Jodi V. Salami (2009) 27 WRN 24 @ p. 36.

It was also submitted that the Chief Magistrate erred in law when it considered only the evidence of the Garnishee and refused or failed to consider the Counter – Affidavit of the Judgment Creditor and the annexed Exhibits and contended that in law where there are two conflicting evidence, it is incumbent on the Court to consider them by placing them on an imaginary scale before preferring one to the other and urged the Court to hold that the Chief Magistrate Court having failed woefully to do so, it was the place of the Court below to carry out a proper evaluation of the evidence and arrive at correct conclusion flowing there

from and to give judgment in favor of the party whose evidence preponderates as was done correctly by the Court below and to dismiss the appeal for lacking in merit. Counsel relied on Ezeanah V. Atta (2004) 17 WRN 1 @ pp. 11- 13; S T B Limited V. Interdril (Nig.) Ltd (2007) 22 WRN 58 @ p. 67

It was further submitted that the Chief Magistrate Court was silent on the Exhibit attached to the Respondents’ counter affidavit which shows that the Garnishee had earlier admitted that the Judgment Debtors operates accounts in names other than their names and contended that had the Chief Magistrate Court considered and evaluated the evidence of the Respondents along with the evidence of the Appellant it would not have come to the perverse conclusion that the accounts sought to be garnisheed do not belong to the 2nd and 4th Respondents as was diligently evaluated and found by the Court below and urged the Court to affirm the correct findings of the Court below and to dismiss the appeal for lacking in merit. Counsel relied on Mafimisebi V. Ehuwa (2007) 29 NSCQR 410 @ p. 413; Oyekoka V. Ajibade (2004) 32 WRN 134 @ p. 139.

It is also submitted that the

evaluation by the Chief Magistrate Court wherein it only to Exhibits A and B, the Statements of Accounts attached to the affidavit to show cause filed by the Appellant but without any reference to the Counter Affidavit in opposition to the affidavit to show cause filed by the Respondent amounted to failure of evaluation of relevant evidence and the finding that because these two accounts belonged to the Edo Command Security Operations and the Nigeria Police and were therefore not accounts belonging to the 2d and 4th Respondents was most perverse and contended that the Court below was right in the circumstances to have carried out proper evaluation of the totality of the evidence as placed before the Chief Marriage Court and arrived proper findings of fact that these two account belonged to the 2nd Respondent as well as the 4th Respondent under whose authority and command the men of the Police Force work across the Country and operates different accounts in different names, “Lagos Overhead Cost Account” and to dismiss the appeal. Counsel relied on Jodi V. Salami (2009) 27 WRN 24 @ p. 36.; Okorie V. State (2018)26 WRN 1 @ p. 12; Arije V. Arije (2018) 37

WRN 105; Chukwuemeka Ezeuko V. The State (2016) WRN 53.

It was further submitted that the deposition in the Counter affidavit to the effect that the 2nd and 4th Respondents operates accounts with the Appellant in different names was not denied by the Appellant in its further affidavit and contended in law facts in an affidavit not denied by the adverse party are deemed admitted and urged the Court to hold that the Appellant having not denied the depositions in the Respondents’ affidavit was deemed to have admitted them and to affirm the decision of the Court below finding against the Appellant in favor of the Respondents and to dismiss the appeal. Counsel relied onLawson Jack V. SPDC (2002) 102 LRCN 2021 @ p. 2030; Buhari V. Obasanjo (2003) 114 LRCN 2723.

It was also further submitted that the deposition by the Appellant that it did not enter into any contractual relationship with the 2nd and 4th Respondent but with the Nigeria Police did not answer the affidavit of the Respondents since in law the Nigeria Police cannot act on its own but through human persons, such as the 2nd and 4th Respondents with the responsibility to act on behalf and

lead the Nigeria Police and contended that in the circumstances it was a folly for the Appellant to shirk from its responsibility and being accepted as such by the Chief Magistrate Court but rightly set aside by the Court below and urged the Court to affirm the findings of the Court below to the effect the accounts operated with the Appellant by either the Nigeria Police or Edo Command Security operation are all for the Nigeria Police and to dismiss the appeal for lacking in merit.

RESOLUTION OF SOLE ISSUE
My lords, at the trial Chief Magistrate Court, the Respondents had sued and obtained judgment against the Inspector General of Police and the Commissioner of Police, Edo Command amongst others in the following terms, namely:
1. That the arrest and detention of the 3rd Applicant and the truck with registration No. XF 733 BEN, he was conducting on the 22/12/2011, was a gross violation of the fundamental Right of the 1st ,2nd and 3rd Applicants, as guaranteed under Section 35 (1) and Section 44 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
2. That the Respondents jointly, are to pay to the 1st and

2nd Applicants, the owner of the truck with registration No. XF 733 BEN, the sum of N75,000 daily from the 22/12/2011, when the vehicle was illegally arrested and detained to the date of judgment. The Respondent are to pay N35,000,00 daily for subsequent detention.
3. I award Two Million Naira as damages to the Applicants against the Respondents. See pages 12-27 of the Record of Appeal.

The Respondents sought to enforce the above judgment against the Respondents by means of Garnishee proceeding before the Chief Magistrate Court which granted the Garnishee Order Nisi and upon the affidavit of the Appellant to show cause, heard both parties and found that the two accounts sought to be garnisheed do not belong to any of the judgment debtors and thereby dismissed the garnishee proceedings. The Respondents then approached the Court below by way of an appeal and on conclusion of hearing the appeal, the Court below set aside the decision of the Chief Magistrate Court and entered a Decree Order Absolute against the Appellant.

Now, the singular question in this appeal is whether the Court below was right when it held that the Chief Magistrate Court

failed to properly evaluate the evidence of the parties and had arrived a perverse findings and thereby intervened and carried out its own re-evaluation and reaching the conclusion that the accounts sought to be garnisheed belonged to the judgment debtors and thereby issuing a Garnishee Order Absolute against the Appellant?

In the Respondents’ counter affidavit to the Appellant’s affidavit to show cause, deposed to by one B. A. lluobe, Esq., it was stated inter alia as follows:
3. That I know of a fact that there is only one Nigeria Police Force with the 4th judgment debtor herein.
4. That the Nigeria Police Force is under the command of the 4th judgment debtor herein.
5. That I know of a fact that the 4th judgment debtor operates several bank accounts with different names in its different departments.
6. That I know of a fact that on 13/2/2013, Jeffery Abanumebo who deposed to the present affidavit to show cause also deposed to an affidavit to show cause in a similar application by the judgment creditor herein.
7. That the said Jeffery at paragraph 4 admitted that the 4th Respondent/judgment debtor operates an

account with the garnishee in the name ‘Lagos Overhead Cost Account and not in the name of the 4th judgment debtor (a Certified True Copy of the affidavit to show cause is attached as Exhibit A)
8. That I know of a fact that the constitutional head of the Edo State Police Command is the 2nd Respondent herein
9. That the 2nd Respondent operates several accounts for its command.
10. That I know of a fact that the account now sought to be attached belongs to the 2nd and 4th Judgment debtor herein. See pages 64 -65 of the Record of Appeal.

In the Appellant’s affidavit to show cause deposed to by one Jeffery Abanumebo, it was stated inter alia as follows:
3(b) That account Nos. 2015957052 and 2022508814 do not belong to any of the judgment debtors.
(c) That account NO.2015957052 is operated by (“THE NIGERIAN POLICE”) who is not a party to this case.
(d) That the statement of account relating to account NO.201595705 operated by The Nigeria Police showing a credit balance of N12,575,095.30
(e) That on the other hand, account NO. 202508814 is operated by the Edo Commands Security Operations showing who is not a

party to this case.
(f) That the statement of account relating to account No. 202508814 being operated by the (“EDO COMMANDS SECURITY OPERATIONS”) showing a credit balance of N1,955,885.
(I) That the Judgment debtors have no account or credit balance in possession of the Garnishee in any of its branches throughout the country. See pages 42 – 43 of the Record of Appeal

It was on the strength of the above affidavit and documentary evidence that the learned Chief Magistrate had held inter alia thus:
“I have given thorough consideration to the submission of Counsel to the Garnishee and Counsel to the Applicants. I have found as a fact that the account shown in Exhibit “A’ belongs to the Nigeria Police. Exhibit “B” belongs to Edo Commands Security Operations. I have also found as a fact that these two juristic personalities are not the Judgment debtors against whom the Judgment is sought to be enforced. These two accounts do not belong to any of the Judgment debtors. In the light of the above, I hold that the Garnishee is not indebted to any of the Judgment debtors. Also it had no contractual relationship with them. Furthermore, they

cannot be sued on it and no benefit can be derived from it. Accordingly, I hold that this application lacks merit and it is hereby dismissed.” See pages 90 – 92 of the Record of Appeal.

On appeal by the Respondents against the said decision of the learned Magistrate Court and after listening to the counsel to the parties and having considered their submissions in their respective appellate briefs, the Court below had, while allowing the appeal against the decision of the learned Chief Magistrate Court, held inter alia thus: “…There is nowhere one would say the Learned Chief Magistrate evaluated the said Counter Affidavit and ascribed probative value (good or bad) to the document…In the instant appeal it seems to me that the Appellant’s Counter Affidavit had no place in the Learned Chief Magistrate’s consideration of the evidence before him….This it did not do. It follows therefore, that this Court can proceed to evaluate the evidence in the Courter Affidavit… As it turns out on the face of the record, that the 4th Respondent operates several bank accounts in different names… the two accounts numbers

2022508814 in the name of “Edo Commands Security Operations” and 2015957052 in the name of “The Nigeria Police” cannot be divorced from the 2nd and 4th Respondents… Looking at the evidence in the printed record, I find and hold that accounts numbers 2015957052 and 2022508814 are accounts owned and operated by the 4th Respondent and the 2nd Respondent respectively in the name of the Nigeria Police… All the Respondents on record, apart from the 5th Respondent, are Policemen and the Police Service Commission, all of whom the 4th Respondent is the head. I am unable to agree with the Respondents’ Counsel that the Learned Chief Magistrate’s decision be allowed to stand. It is not supported by the weight of evidence on record.” See pages 181 – 194 of the Record of Appeal.

My lords, I bear in mind that in law the primary duty of evaluating, reviewing and ascribing probative value and relative weight to the evidence as led by the parties is that of the trial Court. It is the indisputable primary duty of the Court below not only to merely review or restate the evidence led before it by the Parties but to critically appraise and evaluate it in the

light of the issues of facts as disclosed and joined by the parties and in the course of doing so determine which evidence is relevant or admissible or credible or incredible and which weight to attach to the evidence.
Consequently, once a trial Court had carried out this primary duty correctly and come to a right conclusion and sound decision in its judgment that is the end of the matter as no appellate Court worth its name and honor would interfere where the conclusion reached by the trial Court was right and its decision sound on the evidence as led before it. See TSA Industries Ltd. V. Kema Investments Ltd. (2006) 2 NWLR (Pt. 964) 300. See also Agbomeji V. Bakare (1998) 9 NWLR (Pt. 564) 1; Okada Airlines Ltd. V. FAAN (2015) 1 NWLR (Pt. 1439) 1@ p. 23.
It is thus the law that it is only when a trial Court had not carried out its primary duty correctly or shirked from its responsibility to do so or had reached wrong conclusions not flowing from the admitted evidence before it or has misapplied the relevant principles of law to the established facts before it and had in all these instances occasioned a miscarriage of justice that an appellate

Court will be duty bound to interfere to re – evaluate the evidence on the printed record, particularly in circumstances not involving the credibility of witnesses to make proper findings as justified by the evidence on the printed record. See Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. See also CSS Bookshop Ltd. V. The Regd. Trustees Muslim Community in Rivers State (2006) 4 SCM 310; Mogaji V. Odofin (1978) 4 SC 91; Mini Lodge Ltd. V. Ngei (2010) All FWLR (Pt. 506) 1806
An appellate Court would therefore, readily interfere to re-evaluate the evidence in the printed record if is shown that the findings or decisions of the trial Court was perverse in that the conclusion drawn from the proved facts does not flow there from or runs contrary to such proved facts.

1027) 255; Okada Airlines Ltd. V. FAAN (Supra) @p. 22; Owor V. Christopher (2010) All FWLR (Pt. 511) 962; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1247.

Now, the real case as put forward by the Respondents was that while the Appellant claimed that none of the Judgment Debtors owns or operates Account No. 2015957052 and 2022508814 said to belong to the Nigeria Police and the Edo Command Security Operations, in truth from its’ counter affidavit it was shown that these two accounts belonged to the 2nd and 4th Respondents, who are the Commissioner of Police Edo State Command and the Inspector General of Police and that every account belonging to the Nigeria Police is under the command structure of the 4th Respondent as the Inspector General of Police.

I think, looking at the evaluation carried out by the Chief Magistrate Court in which only the case of the Appellant was considered on the record and a decision made without reference to the copious counter affidavit and the Exhibits relied upon by the Respondents, I hold that the Court below was perfectly right when it held that the Chief Magistrate Court failed to properly evaluate the totality

of the evidence of the parties as required of it by law.

I agree with the apt and unassailable submission of the learned counsel for the Respondents that by law in a Garnishee proceeding where the Garnishee claims as against the Judgment Creditor that an account does not belong to the Judgment Debtor, the proper thing for the Court to do is to properly evaluate the evidence proffered by both parties and come to the proper findings flowing there from. The Court cannot evaluate only the evidence of one of the parties while peremptorily merely noting the existence of the evidence of the other party without evaluating same. Where a trial Court fails to carry out its primary duty of evaluation, then it there be an appeal, the appellate Court is under a duty to re- evaluate the evidence, which the trial Court has failed to evaluate, and make proper findings of facts and reach correct decision flowing from the proved evidence for the printed record. See Oyekola V. Ajibade (2004) 32 WRN 134 @ p. 139; Jodi V. Salami (2009) 27 WRN 24 @ p. 36.
In law the Chief Magistrate Court was, as held by the Court below, under a duty to consider both the

Appellant’s affidavit and the Respondents’ counter affidavit, and having failed to do so by failing to place the two conflicting evidence of the parties on the imaginary scale of justice before preferring one evidence to the other, which what the Chief Magistrate Court failed to do. The Court below, in my finding, was therefore, on firmer ground when it held that the Chief Magistrate failed to carry out any dispassionate evaluation of the evidence of both parties before arriving at its perverse findings, which the Court below rightly, in my finding, set aside. A Court facing conflicting evidence from parties must properly evaluate the evidence in order to arrive at correct findings flowing there from and to give judgment in favor of the party whose evidence preponderates more than the evidence of the other party. SeeEzeanah V. Atta (2004) 17 WRN 1 @ pp. 11- 13; S T B Limited V. Interdril (Nig.) Ltd (2007) 22 WRN 58 @ p. 67
Now, the Court below having re – evaluated the evidence as in the printed record, was its conclusion and finding correct on the evidence led by the parties? There was before the Court below the counter affidavit evidence

of both parties, including very vital documentary Exhibits A and B, showing that the two accounts sought to be garnisheed belonged to the Nigeria Police and the Edo Command Security Operations. The only question therefore, was whether these accounts belonged to or do not belong to the 2nd and 4th Respondents against whom the Respondents had earlier obtained judgment from the Chief Magistrate Court?
The Court below considered the entirety of the affidavit and counter affidavit evidence as well as their documentary Exhibits, which the Chief Magistrate Court had failed to do, and arrived at the finding that these two accounts, in the names of the Nigeria Police and Edo Command Security Operations, notwithstanding the names indeed belonged to the 4th Respondent, who as the Inspector General of Police, is the alter ego of the entire Nigeria Police which operates under his overall command under the chain command system of the Nigeria Police.
Having myself taken time to consider the totality of the evidence of both parties, including Exhibits A and B as in the printed record, I find that not only did the Court below carry out a proper evaluation of the

entirety of the evidence as placed before the Chief Magistrate Court as in the record but it also arrived at the correct finding that these accounts in the names of the Nigeria Police and Edo Command Security Operations do actually belong to the Nigeria Police under the overall command of the 4th Respondent the Nigeria Police work across the Country and operates different accounts in different names, including one “Lagos Overhead Cost Account” as well as the 2nd Respondent in charge of the Edo State Command of the Nigeria Police.
Thus, the Court below having carried out proper evaluation of the evidence and having arrived at the correct findings of facts and reached the correct conclusion, I hold that this Court, being an appellate Court, would have no business interfering with and disturbing the correct finding of facts of the Court below but rather to affirm the correct decisions of the Court below. I affirm the view of the Court below that had the Chief Magistrate Court properly evaluated the evidence before it, it would not have come to the perverse finding that the two accounts sought to be garnisheed do not belong to the 2nd and 4th

Respondents. See Oyekola V. Ajibade (2004) 32 WRN 134 @ p. 139.
In Mafimisebi V. Ehuwa (2007) 29 NSCQR 410 @ p. 413, the Supreme Court had stated inter alia thus:
“it is settled law that the evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraises the facts, it is not the business of the appellate Court to substitute its own views for the view of the trial Court but the Court can intervene, where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its findings are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court.”

Now, when a judgment is

attacked on the ground of being against the weight of evidence, an appellate Court has a primary role to consider the judgment and seek to know the following: a) The evidence before the trial Court. b) Whether the trial Court accepted or rejected any evidence upon the correct perception. c) Whether it correctly approached the assessment of the value on it. d) Whether it used the imaginary scale of justice to weigh the evidence on either side. e) Whether it appreciated; upon the preponderance of evidence which side the scale tilted having regard to the burden of proof. See Jodi V. Salami (2009) 27 WRN 24 @ p. 36. See also Okorie V. State (2018)26 WRN 1 @ p. 12; Arije V. Arije (2018) 37 WRN 105; Chukwuemeka Ezeuko V. The State (2016) WRN 53.

The Appellant did not in any way deny the deposition of the Respondents that the Nigeria Police operates different accounts and in different names and in law such a failure to deny those deposition of facts rendered those facts as admitted by the Appellant, and therefore, requires no further proof by the Respondents. In law, facts in an affidavit not denied by the adverse party are deemed admitted. See Lawson Jack V. SPDC

(2002) 102 LRCN 2021 @ p. 2030. See also Buhari V. Obasanjo (2003) 114 LRCN 2723.

I agree with the apt submissions of the learned counsel for the Respondents in Nigeria, the Police does not act on its own but through human persons, such as the 2nd and 4th Respondents with the responsibility to act on behalf of and lead the Nigeria Police. I further agree that, in the circumstances of this case, it was clearly a folly for the Appellant to attempt to shirk from its responsibility of complying with the Garnishee Order Absolute in satisfaction of the judgment debt in favor of the Respondents against the 2nd and 4th Respondents. I affirm the findings of the Court below to the effect the two accounts operated with the Appellant by either the Nigeria Police or Edo Command Security Operation are all for the same Nigeria Police.

My lords, I have already held that the Court below was right when it held that the Chief Magistrate Court did not carry out a proper evaluation of the affidavit evidence before it and had thereby arrived at wrong decision dismissing the Garnishee proceedings of the Respondents. I have also held that the Court below was right when

it proceeded to carry out a re- evaluation of the affidavit evidence of the parties, which re – evaluation I find to be very incisive and proper, and arriving at findings, which I consider impeccable and impeccable, that the Respondents’ made out their case for the Garnishee Order Nisi to be made Absolute against the Appellant.

As I bring this judgment to its close, let me reminiscence, as an aside, on the powers of the Magistrate Courts in the good old days of Colonial Rule, which is perhaps the only way one can situate the perfunctory nature of the evaluation carried out, with all due respects, by the learned Chief Magistrate in the case that went before it between the parties. In the far gone off days, the Magistrate was regarded and treated as the “Full Power”. In Court, and sometimes even out of Court, a Magistrate could do or say anything even in just one sentence and it must be respected and if need be carried out at once. The Natives were so intimidated by the profile of the Magistrate and the near absence of any High Court in any of the far flung places in Colonial Nigeria then. The Magistrate was indeed the all and all – the

Full Power in the midst of the Natives and he needed not waste his time talking and evaluating and reasoning too much in its ruling and judgments! This ruling of the learned Chief Magistrate, with all due respects, and happily in law already set aside by the Court below, reminds me of all the trappings and splendor of the Magistracy as ‘Full Power’ in those far gone days of colonialism when the Magistracy held sway!

In the light of all I have said and found above, the sole issue is hereby resolved against the Appellant in favor of the Respondents.

On the whole therefore, having resolved the sole issue against the Appellant in favor of the Respondents, I hold that the Appeal lacks merit and ought to be dismissed. Consequently, I hereby so dismiss it.

In the result, the Judgment of the High Court of Edo State, Coram: A. Edodo – Eruaga J., in Suit No. B/13A/2013: Interchange Resources Limited & Others V. First Bank Nigeria Plc & Ors., delivered on 18/5/2016, wherein the Ruling of the Chief Magistrate’s Court Evbuoriaria dismissing the Garnishee proceedings of the Respondents against the Appellant was set aside and an

Order of Garnishee Absolute entered against the Appellant in favor of the Respondents, is hereby affirmed.
There shall be cost of N100,000.00 against the Appellant in favor of the Respondents.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment of my learned brother, Sir BIOBELE ABRAHAM GEORGEWILL, JCA., just delivered.
I agree that the appeal lacks merit and, for the elaborate reasoning given in the leading judgment, I also dismiss it.
I abide by all the consequential orders made by my learned brother.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: Having resolved the sole issue for determination in the instant appeal against the Appellant, my learned brother, the Honourable Justice BIOBELE ABRAHAM GEORGEWILL, JCA, adjudged the appeal as bereft of any merit.

I am in agreement with the reasoning and the irresistible conclusion reached in the lead judgment, I find appeal as in merit too, and I hereby dismiss it.
I abide with the consequential orders made as to cost.
The appeal is dismissed.

Appearances:

I. Solomon, Esq., with him, O. Okunkpolor, Esq. and Victor Nna, Esq. For Appellant(s)

Miss O. R. Ehimien For Respondent(s)