FIRST BANK v. AKUBO & ORS (2020)

FIRST BANK v. AKUBO & ORS

(2020)LCN/14199(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/J/57/2018

Before Our Lordships:

Adzira Gana Mshelia Justice of the Court of Appeal

Tani Yusuf Hassan Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

FIRST BANK OF NIGERIA PLC APPELANT(S)

And

PIUS ADEMU AKUBO, SAN (Practicing Under The Name And Style Of Akubo & Company) 2. NASARAWA STATE GOVERNMENT 3. ATTORNEY GENERAL OF NASARAWA STATE RESPONDENT(S)

RATIO

JURISDICTION OF THE COURT IN GARNISHEE PROCEEDINGS

Garnishee proceedings is a judicial proceeding in which a creditor asks the Court to order a third party who is indebted to turn over to the creditor any of the debtor’s property. In other words, a garnishee proceedings is one of the methods by which liquidated money judgments can be enforced, the essence is to realize the fruits of judgment.
The contention of the appellant’s counsel is that since the judgment giving rise to the garnishee proceedings was given in Nasarawa State where the judgment debtor resides, the garnishee proceedings for the enforcement of judgment should have commenced in Lafia Nasarawa State and not Jos, Plateau State which is outside jurisdiction. He argued and submitted that High Court Jos, Plateau State has no jurisdiction to entertain the garnishee proceedings.
First Bank Plc, the appellant in this case has branches all over the States of the Federation. Therefore a garnishee proceedings can be filed in any of its branches in a State, of the Federation. This is because the garnishee proceedings involving the First Bank Plc is within the jurisdiction of Plateau State High Court. Moreso, due to advancement in technology, garnishee proceedings can rightly be commenced against the First Bank Plc. in any part of the Federation notwithstanding that the judgment was obtained in Lafia Nasarawa State. See Sokoto State Govt. Vs. Kamdax (Nig) Ltd. (2004)9 NWLR (Pt. 878)345; CBN Vs. Auto Import Export (2013)2 NWLR (Pt. 1337)80; C.B.N Vs. S.C.B. Vs. No. 1 (2015) 11 NWLR (Pt. 1469) 130; CBN Vs. Ainamo (2019) 7 NWLR (Pt. 1672) 407 and CBN Vs. Interstella Com. Ltd. (2018)7 NWLR (Pt. 1618).
The purport of Section 83 of the Sheriffs Civil Process Act revolves in the essence of commencing a garnishee proceedings in the High Court of the State where the garnishee resides. The rational for the provision in the Section with regard to a debtor residing within the State is basically for convenience and effective enforcement of the judgment, since the First Bank Plc has branches across the country, its jurisdiction is not restricted to any particular judicial division of the Court. Accordingly, the judgment can be enforced in any branch of First Bank Plc. in any State.
Thus the Plateau State High Court rightly entertained the garnishee proceedings because the appellant is within the jurisdiction of the Court in the context of Section 83 of the Sheriffs and Civil process Act. See Nwabueze Vs. Okoye (1988)4 NWLR (Pt. 91)664 and Abiola Vs. FRN (1995)3 NWLR (Pt. 382) 203. PER HASSAN, J.C.A.

ABUSE OF COURT PROCESS

An abuse of Court process means the employment of judicial process by a party, not only to irritate and annoy his opponent, but also against the efficient and effective administration of justice – Alex Vs. F.R.N (2018)7 NWLR (Pt. 1618) 228 at 233. See also Saraki Vs. Kotoye (1992)9 NWLR (Pt. 260) 156.
Where two actions of similar or same nature are between the same parties and on the same subject matter seeking the same result are being prosecuted simultaneously or concurrently before the same Court or different Courts, the latter action is an abuse of Court process. See A.G Kwara State Vs. Lawal (2018)3 NWLR (Pt. 1606) 266 at 276; Doma Vs. Adamu (1999)4 NWLR (Pt. 624) 620; Ikine Vs. Edjerode (2001) 18 NWLR (Pt. 745) 446 and Momoh Vs. Adedoyin (2018)12 NWLR (Pt. 1633) pg. 345. PER HASSAN, J.C.A.

THE DUTY OF THE COURT IN THE EVALUATION OF EVIDENCE

The task of evaluation of evidence and the ascription of probative value to the evidence led in a matter is the primary duty of the trial Court that had the opportunity of seeing, hearing and assessing the witnesses who testified in proof or context of the matter. See Akinbade Vs. Babatunde (2018)7 NWLR (Pt. 1618) 366 at 374 and Adeniji Vs. Adeniji (1972) 4 SC 10. Where the Trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. Where however the trial Court failed in its duty of evaluation properly and came to a wrong conclusion, an Appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision.
PER HASSAN, J.C.A.

THE DOCTRINE OF ESTOPPEL PER RES JUDICATA

Estoppel per rem judicatam or res judicata arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter, and the same issue comes directly in question in subsequent proceedings between the parties and their privies. The principle operates where the subject matter and the question raised in the second matter are the same as the subject matter and question raised and decided in the first matter – Zubair Vs. Kolawole (2019)11 NWLR (Pt. 1682)66 at 77 See also Oleksandr Vs. Lonestar Driling Co. Ltd. (2015)9 NWLR (Pt. 1464) 337; Igbeke Vs. Okadigbo (2013) 12 NWLR (Pt. 1368) 225 and Yanaty Petrochemical Ltd. Vs. EFCC (2018) 5 NWLR (Pt. 1611)97. PER HASSAN, J.C.A.

TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Plateau State High Court, Jos delivered on the 29th day of November, 2017 in Suit No.PLD/J01/NRJ/2017 by Honourable Justice A.I. Ashom.

The facts of the case are that the 1st respondent obtained judgment before the High Court of Justice, Nasarawa State in Suit No. NSD/LF.17/2014 in the sum of N150,000,000.00 plus 10% post judgment interest from the date of judgment until the judgment sum is paid. The 1st respondent waited for three years without payment of the judgment sum from the judgment debtors herein called the 2nd and 3rd respondents.

The 1st respondent upon procurement of Certificate of Judgment from Nasarawa State High Court proceeded to apply to register the said judgment before the Plateau State High Court Jos. The judgment was registered on the 6th of June, 2017. Subsequently the 1st respondent commenced garnishee proceedings before the Plateau State High Court. The lower Court made Garnishee order Nisi order against sixteen Garnishee Banks including the appellant on the 9th of June, 2017 to show cause why judgment sum in the case

should not be paid from the monies standing to the credit of the 2nd respondent. The Garnishee Order Nisi was served on the Garnishee Banks and the appellant responded by filing an affidavit to show cause on the 16th of June, 2017, deposing to the facts that it does not have any account belonging to the judgment debtors. On 20th June, 2017 the appellant received another Garnishee Order Nisi between the same parties in the substantive suit and the same set of Garnishee in Suit No.PLD/J03/NRJ/2017 to seek the enforcement of N103,335,783.32 (One Hundred and Three Million, Three Hundred and Thirty Five Thousand, Seven Hundred and Eighty Three Naira Thirty Two Kobo).

That a search by the 1st respondent at the Head office in Lagos revealed seven accounts belonging to the 2nd and 3rd respondents domiciled in the Lafiya branch of the appellant, outside the territorial jurisdiction of the lower Court.

Upon this discovery, the appellant made a full disclosure by filing an affidavit to show cause, consequently the order Nisi was made absolute in the sum of N2,670,310.49 (Two Million Six Hundred and Seventy Thousand, Three Hundred and Ten Thousand Forty Nine

Kobo)only.

The appellant therefore caused to alter its earlier deposition in Suit No. PLD/J01/M/NR/2017 upon this discovery out of good faith by deposing to a further and better affidavit on 29th day of June, 2017. The 1st respondent filed a further and better affidavit on the 9th of June, 2017 in response to the further and better affidavit of the appellant. The appellant filed a further and better affidavit on the 9th of October, 2017. Another order absolute was made in favour of the 1st respondent in the sum of N199,652,550.00 (One Hundred and Ninety Nine Million, Six Hundred and Fifty Two Thousand, Five Hundred and Fifty Naira) only and 10% per annum from 6th June, 2017 till judgment sum is fully paid against the appellant.

Dissatisfied with the decision, the appellant appealed to this Court by an Amended Notice of Appeal dated 4th December, 2018 and deemed filed on 5th February, 2019. The Amended Notice of Appeal is anchored by six grounds of appeal with their particulars and reliefs sought.

The Appellant’s brief of argument settled by Micheal Numa was dated the 4th of December, 2018 and filed on 6th day of December, 2018 but deemed

filed on the 5th of February, 2019. The Appellant’s Amended Reply Brief dated 20/01/2020 was filed on 22/01/2020 and deemed filed on the 3rd of March, 2020. Three issues were identified therein for determination as follows:
“1. Whether the Plateau State High Court (the Lower Court) possessed territorial jurisdiction to entertain the Garnishee proceedings against the appellant as 3rd Garnishee in the enforcement of judgment sum against the 2nd and 3rd respondents as judgment Debtors who are domiciled outside the territorial jurisdiction of the Court (Ground 1)
2. Whether the 1st respondent’s conduct by filing multiple suits by way of Garnishee proceedings against the appellant and other similar parties does not amount to an abuse of Court process liable to be dismissed in limine (Ground 2)
3. Whether from the material evidence placed before the Court, the learned trial judge was right when he held that the appellant failed to make full and frank disclosure and proceeded to make the Garnishee Order absolute against the appellant.”

Learned Counsel for the appellant adopted the briefs and urged us to allow the appeal and set

aside the judgment of the lower Court.

The 1st respondent’s Amended Brief dated the 21st day of November, 2019 was filed on the 25th day of November, 2019 but deemed properly filed on the 3rd of March, 2020. There is in the brief incorporated a Notice of Preliminary objection. There is also a Motion on Notice dated 7/10/2019 and filed on 8/10/2019. The brief settled by S.Y. Tsok Esq., also has three issues for determination as follows:
1. “Whether the learned trial judge as a Judge of the High Court of Plateau State can make a Garnishee Order Nisi and thereafter Absolute to bind an account in Plateau State branch of a Bank (Appellant) in an effort to enforce judgment obtained by the 1st respondent in Nasarawa State (Ground 1).
2. Whether the 1st respondent’s conduct by filing multiple suits by way of Garnishee proceedings against the Appellant and other similar parties does not amount to an abuse of Court process liable to be dismissed in limine (Ground 2)
3. Whether from the material evidence placed before the Court, the learned trial judge was not right when he held that the appellant failed to make full and frank

disclosure and proceeded to make the Garnishee Order Absolute against the appellant.”
Counsel adopted the brief and urged the Court to dismiss the appeal.

Learned counsel for the 2nd and 3rd respondents Ifeoma Okeke holding brief of Shareef Mohammed for the 2nd and 3rd Respondents indicated at the hearing of the appeal that they did not file any brief.

Where a preliminary objection is raised to an appeal, it is pertinent to first dispose of the preliminary objection. This is very necessary because if the objection succeeds, it determines the fate of the entire appeal prematurely, it must first be considered and resolved so that the Court is not made to embark on a futile hearing of the appeal. See Abe Vs. Unilorin (2013)16 NWLR (Pt.1319)183 and Petgas Resources Ltd. Vs. Mbanefo (2018)1 NWLR (Pt.1601) 442 at 452.

PRELIMINARY OBJECTION
The nature of the Preliminary objection raised is hereby reproduced and reads:
1. The issue raised, the subject matter, the parties and reliefs sought in Appeal No.CA/J/57/2018 are the same and on all fours with the issues raised, the subject matter, the parties and reliefs sought in judgment

delivered on the 10th of December, 2018 in Re: Appeal No. CA/J/441/2017 and as such, this Honourable Court lacks the jurisdiction to entertain this appeal which constitutes estoppel per rem judicatam against the parties in Appeal No. CA/J/57/2018.
2. Ground 2 in the Amended Notice of Appeal dated the 4th December, 2018 but filed on 6th December, 2018 is manifestly incompetent for want of prior leave of Court as same contains new issue not canvassed before the lower Court and/or arising directly from the Ruling of the lower Court.
3. Grounds 3, 4, 5 and 6 in the Amended Notice of Appeal dated 4th December, 2018 but filed on 6th December, 2018 when read together with their respective particulars are needlessly clumsy, tautological, argumentative and characterized by irrelevant and inconsistent particulars and as such incompetent and liable to be struck out for want of compliance with Order 7 Rule 2(3) and 3 of the Court of Appeal Rules, 2016.

The appellant in its reply filed on the 22nd of January, 2020 but deemed filed on the 3rd of March, 2020 responded to the preliminary objection raised from Pp. 1-11 of the reply brief.

I wish to point

out that the 1st respondent also filed a Motion on Notice on 8th October, 2019 by way of preliminary objection on two grounds, which two grounds are similar to grounds two and three of the grounds of objection raised in the preliminary objection.

The first ground raised in the preliminary objection to the hearing of this appeal is that this Honourable Court has no jurisdiction to entertain this appeal which constitutes estoppel per rem judicatam against the parties in the present Appeal No. CA/J/57/2018 with the parties in CA/J/441/2017 in which judgment was delivered on the 10th December, 2018.

The submission of the learned counsel for the 1st respondent on this ground of objection is to the effect that this Honourable Court delivered judgment on the 10th of December, 2018 in Appeal No. CA/J/441/2017 involving the same parties, the same issues, same subject matter and the reliefs sought with this appeal, to wit; CA/J/57/2018. That the appellant in this appeal was the 3rd Garnishee in Appeal No. CA/J/441/2017. The 1st respondent in this appeal was the 1st respondent in Appeal No. CA/J/441/2017.

The issue in Appeal No. CA/J/441/2017 was the

Garnishee Order Nisi resulting into Garnishee Order Absolute, in Suit No. PLD/J03/NRJ/2017 be set aside on the ground that it was decided per incuriam. So also the issue in this Appeal No. CA/J/57/2018 is that the Garnishee Order Nisi resulting in Garnishee Order Absolute in Suit No. PLD/J03/NRJ/2017 be set aside on the ground that it was decided per incuriam. That the subject matter in Appeal No. CA/J/441/2017 relates to Garnishee proceedings and the subject matter in the instant appeal is also in respect of Garnishee proceedings.

Learned counsel for the 1st respondent submitted that the appellant’s appeal is res-judicata. That the law is settled, where a matter has been adjudicated upon by the same parties, estoppel per rem judicatam will preclude the parties in any subsequent proceedings. Counsel relied on Adeyefa Vs. Bamgboye (2014)11 NWR (Pt. 1419) 520 at 542-543 paras H-A; Sylva Vs. INEC (2015) 16 NWLR (Pt. 1486) 576 at 626 paras A-B; Cole Vs. Jibunoh (2016)4 NWLR (Pt. 1503) 499 at 521 paras – A and Ogbolosingha Vs. B.S.I.E.C (2015) 6 NWLR (Pt. 1455) 311 at 334 para G. among others, to submit that the appellant is caught by the principle of

estoppel per rem judicata and therefore precluded from bringing this appeal which deprived this Court of jurisdiction to entertain the appeal. We are urged to uphold the objection.

Learned counsel for the appellant argued in response that the 1st respondent made reference to the judgment in Appeal No. CA/J/441/2017 without placing the judgment before the Court, the implication of which is to speculate on the existence of the decision. That failure to furnish the judgment in issue is not a mere irregularity but a fundamental defect which renders the ground of objection incompetent.

Although he said the Court can take judicial notice of the case. The Court was referred to Jukok Intl. Ltd. Vs. Diamond Bank Plc. (2016)6 NWLR (Pt. 1507)55 at 109 paras G-H; APC Vs. INEC & Ors. (2014) LPELR – 24036 (SC) and Zenith Bank Plc. Vs. Business Gold Ltd. (2017)17 NWLR (Pt. 1595) 489 at 503-504 para G-A.

Referring to the judgment in Appeal No. CA/J/441/2017 sought to be relied upon by the 1st respondent, counsel submitted that the appellant was neither the appellant nor respondent in that appeal but was merely described as a Garnishee and not one of

the parties directly affected by that appeal because the issues did not border on the Garnishee order made absolute by the Lower Court which is the basis of this instant appeal. He argued that the proceedings was strictly between the appellant and the 1st respondent based on the averments contained in affidavit evidence concerning First Bank Plc., and no decision whatsoever has been reached by any appellate Court to finality in that regard. That the mere joinder of the appellant as 2nd Garnishee in that proceedings in Appeal No. CA/J/441/2017 does not amount to participation for this appeal to be caught by the principle of res judicatam as the issues and the parties are different in both appeals. Counsel relied on the case of Zubair Vs. Kolawole (2019)11 NWLR (Pt. 1683)66 at 100 to submit that the appellant herein is not a privy of Nasarawa State Government who is the appellant in Appeal No. CA/J/441/2017 and no specific pronouncement was made in that appeal that binds the appellant in furtherance on the issue of res judicata.
We are urged to overrule this ground of objection.

The 1st respondent’s submission on this ground is to the effect that

the appellant’s appeal is caught by the principle of estoppel per rem judicatam. Counsel referred to the judgment of this Court delivered on the 10th of December, 2018 in Appeal No. CA/J/441/2017 and argued that the parties, the subject matter and the reliefs sought therein are the same and on all fours with the issues raised, the subject matter, the parties and the reliefs sought in the present appeal No.CA/J/57/2018. As a consequence, the learned counsel submitted that this Court has no jurisdiction to entertain the appeal.

Learned counsel for the appellant submitted that the issues, subject matter, parties and the reliefs sought in the previous Appeal No.CA/J/441/2017 is not the same as the present Appeal No.CA/J/57/2018. He concluded that the appeals are different.

However as rightly submitted by the appellant’s counsel this Court can take judicial notice of the Appeal No. CA/J/441/2017 even though it was not attached to the preliminary objection, raised by the 1st respondent.

Reading through the judgment in Appeal No.CA/J/441/2017 at page 3, reference was made to the Ruling of the Lower Court delivered on 29th November, 2017 on

application of the appellants wherein the lower Court dismissed the application and proceeded to make a Garnishee Order Nisi, Absolute against the Garnishees in respect of the sums of monies in their possession belonging to the appellants. The appellant in this appeal is the 2nd Garnishee in Appeal No.CA/J/441/2017. It is therefore incorrect for the appellant’s counsel to submit that the appellant was not affected by that judgment as it was not a party therein. This is because all the prayers therein were directed at the Garnishees and the Garnishee proceedings. The Order Absolute made by the lower Court against all the Garnishees was affirmed by this Court in Appeal No.CA/J/441/2017. Therefore the appellant being the 2nd Garnishee in Appeal No.CA/J/441/2017 is affected by that decision. This is contrary to the submission of the learned counsel to the appellant that the appeal in CA/J/441/2017 is not related to Garnishee proceedings in the instant appeal. Both appeals are in in respect of the Order Absolute made by the lower Court against the Garnishees.

The submission of the appellant’s counsel in this regard is of no moment. Estoppel per rem

judicatam or res judicata arises where an issue of fact has been judicially determined in a final manner between the parties or their privies by a Court or Tribunal having jurisdiction in the matter, and the same issue comes directly in question in subsequent proceedings between the parties and their privies. The principle operates where the subject matter and the question raised in the second matter are the same as the subject matter and question raised and decided in the first matter – Zubair Vs. Kolawole (2019)11 NWLR (Pt. 1682)66 at 77 See also Oleksandr Vs. Lonestar Driling Co. Ltd. (2015)9 NWLR (Pt. 1464) 337; Igbeke Vs. Okadigbo (2013) 12 NWLR (Pt. 1368) 225 and Yanaty Petrochemical Ltd. Vs. EFCC (2018) 5 NWLR (Pt. 1611)97.

In the instant case, although the appellant was not the appellant in Appeal No. CA/J/441/2017 but the appellant and the respondents in the present Appeal No. CA/J/57/2018 are the same parties in both Suits. There were specific findings by a Court of competent jurisdiction the High Court of Plateau State which was affirmed by this Court in Appeal No. CA/J/441/2017 in respect of the same parties and same subject matter, delivered

on 10th December, 2018. The findings are binding and subsisting between the parties in the absence of an appeal setting it aside. See Durbar Hotel Plc. Vs. Ityough (2017) 7 NWLR (Pt. 1564) 256; Uwazurike Vs. Nwachukwu (2013) 3 NWLR (Pt. 1342) 503 and Fadiora Vs. Gbadebo (1978)3 SC 219.

Indeed, the present appeal is substantially the same as the appeal in Appeal No.CA/J/441/2017. All the ingredients of a successful plea of estoppel per rem judicatam exist mutatis mutandis. The consequence is that this Court is deprived of jurisdiction to entertain the appeal. The first ground of objection succeeds and it is upheld.

On the second ground of objection the submission of the 1st respondent’s counsel is that new issue was raised in ground 2 of the Amended Notice of Appeal dated 4th December, 2018 and filed on 6th December, 2018 but deemed filed on 5th February, 2019 without prior leave sought and obtained from this Court.

The appellant’s counsel in response said leave was granted to the appellant on 5th February, 2019 to raise fresh issue. There was a Motion filed on the 6th of December, 2018 before this Court by the appellant. Prayer 2 in the

Motion Paper was for leave to the appellant/applicant to raise and formulate two additional grounds of appeal. Leave was granted to the appellant by this Court on 5th February, 2019 to raise the issue. So this objection does not arise. It is discountenanced.

With regard to ground three of the objection, the 1st respondent’s counsel submitted that grounds 3, 4, 5 and 6 of the Amended Notice of Appeal filed on 6th of December, 2018 with their respective particulars are characterized by repeated arguments and inconsistency between the particulars. That the particulars in grounds 3, 4, 5 are argumentative, while in ground 6 the particulars are full of needless arguments which is contrary to Order 7 Rules 2(3) and 3 of the Court of Appeal Rules, 2016. Counsel relied on Lagga Vs. Sarhuna (2008)16 NWLR (Pt. 1114) 427 at 456 paras D-E; Ngige Vs. Obi (2006)14 NWLR (Pt. 999) 1 at 165 paras D-E and Daboyi Vs. Sa’adu (2011)15 NWLR (Pt. 1269) 1 at 16-17.

Responding, the appellant’s counsel submitted that the argument of the 1st respondent’s counsel is misconceived because the grounds are precise, discernable and not argumentative as

canvassed. That the law is settled, grounds of appeal must be read along with their particulars to demonstrate or ascertain the real import of same. That even if the particulars are argumentative, it is not fatal to render the said grounds of appeal incompetent. He referred to Abe Vs. Unilorin (2013)16 NWLR (Pt. 1379) 183 at 198-199 para H-G; Nasarawa State Govt. & Anor. Vs. Plus Ademu Akubo Appeal No. CA/J/441/2017 delivered on 10th December, 2018; Central Bank of Nigeria Vs. Okojie (2002)1 SCNJ 290; Awusa Vs. Nigerian Army (2018) LPELR 44377 (SC) and Oye Vs. Alioke (2017) LPELR – 43375 (CA) to submit that the essence of particulars is to project the reason for the grounds complained of and the inelegance of the said particulars would not invalidate the grounds from which they flow.

The purpose of particulars of a ground of appeal are meant to elucidate and advance the reason for the complaint in the ground. Therefore I deem it necessary to reproduce the grounds complained of, and the particulars in the Amended Notice of Appeal which was deemed filed on the 5th of February, 2019.
GROUND THREE
The learned trial judge erred in law when

he made an order absolute against the Appellant i.e. First Bank of Nigeria Plc., on the ground that the Appellant did not make a full and frank disclosure of accounts of the judgment debtors in its affidavit.
PARTICULARS OF ERROR OF LAW
i. Upon the receipt of the order Nisi by the main branch of the Appellant in Jos, the appellant on 15th June, 2017 filed an affidavit to show cause to the affect that the judgment Debtors/2nd and 3rd respondents do not maintain an account with the appellant.
ii. The 3rd Garnishee/Appellant later filed a Further Affidavit on 29th June, 2017 stating that it has discovered that the 1st Respondent/Nasarawa State Government maintains 7 accounts with the Appellant.
iii. The deponent in the Further Affidavit stated the reason why the first search he conducted on the Bank’s database could not produce positive result which led to the first Affidavit.
iv. The law allows a deponent to correct or alter his earlier deposition with fresh deposition
v. That in paragraph 5 of the Further Affidavit filed on 29th June, 2017 the appellant made a full and frank disclosure of the state of the 7 (seven) Bank

accounts subsequently discovered, supported by the computer generated Bank statement evidencing the balances in the 7 accounts.
vi. The appellant filed Further Affidavit on 29th June, on its own accord and volition immediately it discovered the existence of the 2nd and 3rd respondents account domiciled with its Banks, before issues were joined on his initial affidavit to show cause.
vii. The decision of the trial Court was not reached on the basis of the evidence before the Court, but extraneous narrative.

GROUND FOUR
The learned trial judge erred in law when he made an order Absolute against the Appellant on the ground that the statement of Account attached as Exhibits 1-7 to the Further Affidavit dated 29th June, 2017 are not detailed and clear without first ordering that the appellant should produce clear and detailed Exhibit Statements of Account.
PARTICULARS OF ERROR
i. The trial Court found that Exhibits 1-7 attached to the Further Affidavit filed on 29th June, 2017 were not clear
ii. The Court did not make an order directing the Appellant to produce clearer copies of the statement of account attached as Exhibits 1-7

before proceeding to decide on the propriety of evidence adduced on them.
iii. Apart from the Exhibits 1-7, the appellant clearly stated in a table of particulars of the accounts as to accounts name, Account Numbers, Total balance and comment at paragraph 6 of the Further Affidavit on 29/6/2017.
iv. That the decision of the learned trial judge was hasty and speculative not based on evidence before the Court.

GROUND FIVE
The learned trial judge erred in law and this occasioned a miscarriage of justice when he held that the deponent to the affidavit to show cause filed on 15/06/2017 did not disclose where the search for the accounts of the 1st judgment debtor was conducted and this occasioned miscarriage of justice.
PARTICULARS OF LAW
i. The deponent made a clear disclosure that he is a staff of the Jos branch of the Appellant
ii. The deponent also stated that it is the Jos branch that received the order Nisi despite the fact that none of the accounts were domiciled in the branch neither did the dispute arise from the Jos branch.
iii. The deponent stated that upon receipt of the order Nisi he made the search at Jos

branch which proved negative with respect to the existence of the account.
iv. The Further Affidavit filed on 29/06/2017 shows that the deponent later sent the order Nisi to the Banks Head office hence the second search that led to the discovery of seven (7) accounts operated by the 1st Judgment Debtor/Respondent.

GROUND SIX
The learned trial judge erred in law and occasioned a miscarriage when it made an order absolute against the Appellant when there is no contrary evidence produced by the 1st respondent/Judgment creditor to the effect that the 1st Judgment Debtor/2nd respondent had other accounts other than the seven (7) accounts stated by the appellant in its Further Affidavit.
PARTICULARS OF ERROR
i. The appellant in its further affidavit disclosed that the 1st Judgment debtor had seven accounts with it.
ii. The 1st respondent/judgment creditor in his further and better affidavit alleged at paragraph 7 that apart from the seven (7) accounts stated by the appellant, the 1st judgment debtor/2nd respondent also operated accounts No. 0113638881.
iii. The Appellant denied the existence of the account No. 0113638881 in its

further affidavit filed on 9th October, 2017.
iv. The learned trial judge did not look at the affidavit before him
v. The trial Court did not resolve the dispute before it pursuant to Section 87 of the Sheriff and Civil Process Act Cap 407 LFN before proceeding to make the order absolute
vi. The learned trial judge proceeded to give credence to the 1st Respondent’s averments without same being substantiated by any supporting credible evidence.

The complaint of the 1st respondent is on the particulars of grounds 3, 4, 5 and 6 of the grounds of appeal. However the law does not allow a party to read the particulars of a ground separately from the main ground of appeal. Particulars of error alleged in a ground of appeal are intended to highlight the complaint against the decision appealed. They are specifications of errors or misdirection which show what the complain against the decision is all about. And, in order to determine whether or not a ground of appeal is relevant to the issue formulated in the appeal, the main ground must be read in conjunction with its particulars to make it a complete ground. See Nyako Vs. A.S.H.A. (2017) 6

NWLR (Pt. 1562) 347 at 362; Peter Vs. NNPC (2010) 8 NWLR (Pt. 1195) 173; Diamond Bank Vs. PIc. Ltd. (2009) 18 NWLR (Pt. 1172)67 and Ibrahim Vs. Mohammed (2003)6 NWLR (Pt. 817)615.
In the instant case the complaint of the 1st respondent is hardly properly understood where there is a dichotomy between the main ground and its particulars. The 1st respondent in his objection did not complain about how grounds 3, 4, 5 and 6 were couched, his complaint was about the particulars being argumentative or narrative in nature.
I have examined the particulars of grounds 3, 4, 5 and 6 of the grounds of appeal and I fail to see the argumentative ways they were couched, but they apparently satisfied the purpose for which the ground of appeal are required to have particulars. Assuming they are argumentative, the 1st respondent is not misled as to the complaint of the appellant. The fact that particulars to the said grounds of appeal are argumentative and repetitive is not enough for the Appellate Court to sidestep from doing justice. It will amount to undue technicality as opposed to substantial justice to strike out such grounds of appeal for being incompetent.

See Odoniyi Vs. Oyeleke (2001)2 SC 194; Awusa Vs. Nigerian Army (2018)12 NWLR (Pt. 1634) 421 at 429; Registered Trustees, C.A.C. Vs. Dada (2017)2 NWLR (Pt. 1548) 61 and Chiadi Vs. Aggo (2018)2 NWLR (Pt. 1603) 175.
Accordingly I hold that grounds 3, 4, 5 and 6 of the grounds of appeal cannot be struck out as canvassed by the 1st respondent’s counsel. The objection is refused for the above reasons.

The preliminary objection of the 1st respondent succeeds in part. The appeal is caught by the principle of estoppel per rem judicatam which deprived the Court of jurisdiction to entertain the appeal. The appeal is struck out for want of jurisdiction.

In case I am wrong I will consider the merit of the matter in the alternative. I shall utilize the appellant’s issues in resolving the appeal.

ISSUE ONE
“Whether the Plateau State High Court (Lower Court) possessed territorial jurisdiction to entertain the Garnishee proceedings against the appellant as 3rd Garnishee in enforcement of a judgment sum against the 2nd and 3rd respondents as judgment Debtors who are domiciled outside the territorial jurisdiction of the Court.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

Learned counsel for the appellant argued that the learned trial judge arrogated to himself jurisdiction to adjudicate the 1st respondent’s Garnishee proceedings to enforce a monetary judgment obtained in Lafia Nasarawa State against the 2nd and 3rd respondents in Plateau State pursuant to Section 105 of the Sheriff and Civil Process Act. Counsel submitted that Section 105 of the Sheriffs and Civil Process Act is inapplicable in the circumstance of this case, a Garnishee proceedings. He relied on Purification Techniques (Nig.) Ltd. Vs. A.G. Lagos State (2012)1 Banking and Finance Law Report page 544 at 553 line 5-15; CBN Vs. Interstella (2018)7 NWLR (Pt. 1618) AND Nwabueze Vs. Okoye (1988)4 NWLR (Pt. 91) 664 at 680-681 paras H-A to submit that Plateau State High Court lacks jurisdiction to adjudicate over the proceedings. That the law is that Court exercises jurisdiction only over persons who are within its territorial jurisdiction.

Learned counsel referred to Section 83 of the Sheriff and Civil Process Act, on Garnishee proceedings, and the cases of Ahmadu Vs. Gov. of Kogi State (2002) 3 NWLR (Pt. 755) 502; CBN Vs. Auto import Export & Anor.

(2012) 4 Banking and Financial Law Report 1 at 35 and Mailantarki Vs. Tongo & Ors. (2017) LPELR – 42467 (SC) on territorial jurisdiction, to submit that the issue is not a technical issue but boarders on jurisdiction of the Court.
We are urged to resolve in favour of the appellant.

Learned counsel for the 1st respondent in response to this issue submitted that the argument of the appellant is not in accord with the position of the law and the cases cited by the appellant in support of its argument are misconstrued. He referred to Section 83(1) of the Sheriffs and Civil Process Act, that the word judgment creditor therein refers to the Garnishor who is entitled to attach a debt and it does not mean where the judgment was delivered against the judgment debtor but where the judgment creditor/Garnishor can conveniently enforce the judgment. That the purport of Section 83(1) of the Sheriffs and Civil process Act revolves around the essence of commencing Garnishees proceedings in the High Court of a State where the Garnishees resides.

Learned counsel submitted further that the First Bank the appellant herein has branch offices in virtually

all the States of the Federation including Jos, Plateau State and judgment can be enforced against it regardless of the branch. The cases of CBN Vs. Interstella (supra); Zenith Bank Vs. John (2015)7 NWLR (Pt. 1458) 393 and Sokoto State Govt. Vs. Kamdax (Nig) Ltd. (2004)9 NWLR (Pt. 878) 345 were referred to submit that the Garnishee proceedings does not necessarily have to commence in the Court that gave judgment, it could be in any Court under the High Court (Civil procedure Rules or under the appropriate Section or rule governing civil procedure).

That the argument of the appellant’s counsel the Garnishee proceedings should have been commenced in Lafiya Nasarawa State and not Jos Plateau State which is outside the jurisdiction of the judgment debtors is misconceived. We are urged to resolve in favour of the 1st respondent.

Garnishee proceedings is a judicial proceeding in which a creditor asks the Court to order a third party who is indebted to turn over to the creditor any of the debtor’s property. In other words, a garnishee proceedings is one of the methods by which liquidated money judgments can be enforced, the essence is to realize

the fruits of judgment.
The contention of the appellant’s counsel is that since the judgment giving rise to the garnishee proceedings was given in Nasarawa State where the judgment debtor resides, the garnishee proceedings for the enforcement of judgment should have commenced in Lafia Nasarawa State and not Jos, Plateau State which is outside jurisdiction. He argued and submitted that High Court Jos, Plateau State has no jurisdiction to entertain the garnishee proceedings.
First Bank Plc, the appellant in this case has branches all over the States of the Federation. Therefore a garnishee proceedings can be filed in any of its branches in a State, of the Federation. This is because the garnishee proceedings involving the First Bank Plc is within the jurisdiction of Plateau State High Court. Moreso, due to advancement in technology, garnishee proceedings can rightly be commenced against the First Bank Plc. in any part of the Federation notwithstanding that the judgment was obtained in Lafia Nasarawa State. See Sokoto State Govt. Vs. Kamdax (Nig) Ltd. (2004)9 NWLR (Pt. 878)345; CBN Vs. Auto Import Export (2013)2 NWLR (Pt. 1337)80; C.B.N Vs. S.C.B. Vs. No. 1

(2015) 11 NWLR (Pt. 1469) 130; CBN Vs. Ainamo (2019) 7 NWLR (Pt. 1672) 407 and CBN Vs. Interstella Com. Ltd. (2018)7 NWLR (Pt. 1618).
The purport of Section 83 of the Sheriffs Civil Process Act revolves in the essence of commencing a garnishee proceedings in the High Court of the State where the garnishee resides. The rational for the provision in the Section with regard to a debtor residing within the State is basically for convenience and effective enforcement of the judgment, since the First Bank Plc has branches across the country, its jurisdiction is not restricted to any particular judicial division of the Court. Accordingly, the judgment can be enforced in any branch of First Bank Plc. in any State.
Thus the Plateau State High Court rightly entertained the garnishee proceedings because the appellant is within the jurisdiction of the Court in the context of Section 83 of the Sheriffs and Civil process Act. See Nwabueze Vs. Okoye (1988)4 NWLR (Pt. 91)664 and Abiola Vs. FRN (1995)3 NWLR (Pt. 382) 203.

The issue is resolved in favour of the 1st respondent and against the appellant.

ISSUE TWO
“Whether 1st respondent’s conduct by filing multiple suit by way of garnishee proceedings against the appellant and other similar parties does not amount to an abuse of Court process liable to be dismissed in limine.”

Learned counsel for appellant submitted that the attitude of the 1st respondent commencing two separate garnishee proceedings against same sets of judgment debtors and same sets of garnishees for the enforcement of monetary judgment debtor accruing to one judgment creditor amounts to an abuse of judicial process targeted at harassing and irritating the appellant. The Court was referred to Ikenya Vs. Bwacha & Ors. (2011) LPELR 19747.

For his part, learned counsel for the 1st respondent submitted that the 1st respondent filed two different suits before the High Court of Nasarawa State with two different claims. The claims were independent of each other having arisen from two different engagements to recover different facilities at different times for the benefit of the 2nd and 3rd respondents. That the judgments in the two suits having distinct claims were entered at two different dates.

Learned counsel referred to the two suits

as No. NSD/LF/17/2014 in which judgment was entered on 6th June, 2014, and suit No. NSD/LF/18/2014, the judgment was entered therein on 6th of February, 2017. That garnishee proceedings was commenced by registering the judgment in Suit No.NSD/LF/17/2014 on 6th June, 2017 while the garnishee proceedings was commenced by registering Suit No.NSD/LF/18/2014 on the 9th June, 2017. That the two separate garnishee proceedings have two different and separate claims that resulted in the distinct judgments obtained from High Court of Nasarawa State.

It is argued that the respective suits are founded on separate and distinct cause of action that have given rise to separate and distinct reliefs, and the 1st respondent had every valid and legitimate reason in law to have commenced two separate proceedings against the same set of parties having obtained two different judgments arising from two different claims. He referred to Sokoto State Govt. Vs. Kamdax (Nig.) Ltd. (supra) at 376 paras A-C.

An abuse of Court process means the employment of judicial process by a party, not only to irritate and annoy his opponent, but also against the efficient and effective

administration of justice – Alex Vs. F.R.N (2018)7 NWLR (Pt. 1618) 228 at 233. See also Saraki Vs. Kotoye (1992)9 NWLR (Pt. 260) 156.
Where two actions of similar or same nature are between the same parties and on the same subject matter seeking the same result are being prosecuted simultaneously or concurrently before the same Court or different Courts, the latter action is an abuse of Court process. See A.G Kwara State Vs. Lawal (2018)3 NWLR (Pt. 1606) 266 at 276; Doma Vs. Adamu (1999)4 NWLR (Pt. 624) 620; Ikine Vs. Edjerode (2001) 18 NWLR (Pt. 745) 446 and Momoh Vs. Adedoyin (2018)12 NWLR (Pt. 1633) pg. 345.
In the instant case, the appellant did not establish a case of abuse of Court process against the 1st respondent. The law is settled, he who alleges must prove. It follows that what is alleged without proof can be denied without proof. In any case, I am satisfied with the response of the 1st respondent on this issue that the two suits are different having distinct claims. Moreso when judgment on the two suits was delivered on different dates i.e. in 2014 and 2017.
This issue is also resolved in favour of the 1st respondent and against the appellant.

ISSUE THREE
“Whether from the material evidence placed before the Court, the learned trial judge was not right when he held that the appellant failed to make full and frank disclosure and proceeded to make the Garnishee Order Absolute against the appellant.”

Learned counsel for the appellant submitted that the trial judge erred in law when he held that the appellant failed to make a full and frank disclosure of the 1st judgment debtor. That there was no proper evaluation and consideration of the entire material placed before the Court. Counsel submitted that the appellant upon being served with the order Nisi on 13th June, 2017, the appellant timeously filed an affidavit to show cause stating its findings at that material time. He said the appellant upon subsequent findings altered the previous findings disclosing all the account owned by the 2nd respondent. That the Trial Court failed to give credence to the disclosure made by the appellant. The Court was referred to Adekeye Vs. Akin Olugbade (1987)3 NWLR (Pt. 60)214 at 224; Oceanic Bank Vs. Oladepo & Anor. (2013)1 Banking and Financial Law Report page 201 at 215.

Appellant’s counsel submitted that the appellant satisfied the requirement of the law by furnishing the prevailing account balance of all the seven Bank accounts in its custody when the garnishee order nisi was served on it which the trial Court failed to give proper consideration to it. He referred to Section 87 of the Sheriffs and Civil Process Act and the cases of Central Bank of Nigeria Vs. Hydro Air PTY Ltd. (2014) 1 BFLR 48-49; Peat Marwick & Co. Vs. Okiki (1995) 1 NWLR (Pt. 369) 71 at 85 para H-A and NJC Vs. Agumagu (2015)10 NWLR (Pt. 1467) 365 at 422 to submit that the decision of the trial Court is perverse and occasioned a miscarriage of justice.
The Court is urged to resolve in favour of the appellant.

On the other hand, the 1st respondent’s counsel argued that from the affidavit to show cause filed by the appellant on 15th June, 2017, it is deposed that the 2nd respondent did not have an account with the appellant. That subsequently, the appellant filed another affidavit to show cause on 29th June, 2017 but did not attach legible copies of the statement of accounts it disclosed.

Learned counsel said the 1st

respondent on his part filed a Further and Better Affidavit on 28th July, 2017 to counter the deposition in the appellant’s affidavit to show cause filed on 29th June, 2017. It is submitted that the appellant did not make available comprehensive statements of account in respect of those accounts and those statements of account are inchoate in that each of them covers only a limited period without specific record of in-flows and out goings. That it is the statements of account that the lower Court would rely upon to make its findings or conclusions. The Court was referred to Jukok Int’l Ltd. Vs. Diamond Bank Plc. (2016)6 NWLR (Pt. 1507)55 at 109 paras G-H; Akila Vs. Director General SSS (2014) 2 NWLR (Pt. 1392)443 at 476 paras A-B.

It is finally submitted that the judgment of the trial Court is unassailable. The Court is urged to resolve in favour of the 1st respondent.

See Akinbade Vs. Babatunde (2018)7 NWLR (Pt. 1618) 366 at 374 and Adeniji Vs. Adeniji (1972) 4 SC 10. Where the Trial Court has unquestionably evaluated the evidence and appraised the facts, it is not the business of the Appellate Court to substitute its own views for the views of the trial Court. Where however the trial Court failed in its duty of evaluation properly and came to a wrong conclusion, an Appellate Court is in a good position as the trial Court to evaluate the evidence and ascribe probative value thereto before taking a decision.
In the instant case, the appellant alleged that the trial Court did not ascribe probative value to the statements of account of the 2nd respondent tendered by the appellant attached to their Further Affidavit filed on 29th June, 2017. However the appellant failed to attach legible copies for the Court to determine but rather argued that the Court should have requested for a clear copy. It is incumbent for the appellant to exhibit legible copies of the statements of account if it intended the lower Courts to read and rely on its documents for determination in the case between it and the respondents. Having failed to do

so, it cannot blame the lower Court for not asking for a legible copy. See Akila Vs. Director General SSS (supra). Section 87 of the Sheriffs and Civil Process Act and the case ofBank of Nigeria Vs. Hydro (supra) relied upon by the appellant do not support the argument of the appellant in this regard. The trial Court was therefore right when it held in its judgment at Pp. 251-252 of the record thus:
“Clearly from the content and context of the affidavits to show cause filed by the 3rd garnishee, they play gimmicks to shield the accounts of the 1st judgment debtor. The expression made by the judgment creditor in paragraph 10 of the Further and Better Affidavit in response to the 3rd garnishee’s affidavit to show cause is quite apt and accurate. Therein the judgment creditor deposes that the 3rd garnishee failed to make a full disclosure and by extension failed to show sufficient cause.”
From the above extract, it is clear that the Lower Court considered the affidavits of both parties to come to its conclusion. The decision is not perverse to have said, it occasioned a miscarriage of justice. A Court’s finding is said to be

perverse if it took into account certain maters which it ought not to have considered or where it shut its eyes to the obvious proved facts. It is not the situation in this case.
What amount to miscarriage of justice is failure on the part of the Court to do justice. In this case, the trial Court did consider the appellant’s affidavit to show cause with the attached document to arrive at its findings. I will not interfere with the said findings.

The issue is resolved in favour of the 1st respondent and against the appellant. All the issues having been resolved against the appellant, the result is that the appeal lacks merit and it is dismissed. Parties to bear their respective costs.

ADZIRA GANA MSHELIA, J.C.A.: I had the privilege of reading in advance the lead Judgment of my learned brother, Hassan, J.C.A. just delivered. I completely agree that the appeal is devoid of merit and should be dismissed. I too dismiss the appeal and abide by the consequential orders contained in the lead Judgment inclusive of costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I read in draft the lead judgment of my learned brother TANI YUSUF HASSAN, J.C.A., and I am

in agreement with his reasoning and conclusion; I also dismiss the appeal and abide by the order as to costs as contained in the lead judgment.

Appearances:

M.J. NUMA, with him, E.O. AGI For Appellant(s)

S.Y. TSOK, with him, C.U. EDOKPA – for the 1st Respondent

IFEOMA OKEKE – 2nd & 3rd Respondent holding brief of the SHAREEF MOHAMMED For Respondent(s)