GUARANTY TRUST BANK PLC v. INNOSON NIGERIA LIMITED (2014)

GUARANTY TRUST BANK PLC v. INNOSON NIGERIA LIMITED

(2014)LCN/6828(CA)

In The Court of Appeal of Nigeria

On Thursday, the 6th day of February, 2014

CA/I/258/2011

RATIO

EVIDENCE: WHETHER AN UNCHALLENGED AND UNCONTROVERTED AFFIDAVIT EVIDENCE IS TO BE DEEMED ADMITTED BY THE OPPOSITE PARTY

It is the law that where affidavit evidence is unchallenged and uncontroverted as in the present case, concerning the credit balance of over N5 Billion Naira in the account of Nigerian Customs Services of whom the 1st Judgment debtor is liable for its action and the deposition that as at 3rd March, 2011 when the Appellant was served with the order Nisi, the 1st Judgment debtor had up to Ten Billion Naira (N10 Billion to its credit in an account maintained with the Appellant Garnishee) the court is bound to accept the facts contained therein as deemed to be admitted by the opposite side. See, THE HONDA PLACE LTD. V. GLOBE MOTORS HOLDINGS LTD. (2005) 7 SCNJ 522; (2005) 14 NWLR (PT. 945) 273; MISS IFEYINWA OGOEJEOFO V. DANIEL CHIEJINA OGOEJEOFO (2006) 1 SCNJ 69; (2006) 3 NWLR (PT. 966) 205. Per CHIDI NWAOMA UWA, J.C.A.

APPEAL: DETERMINING A GROUND OF APPEAL IS OF LAW, FACT OR A MIXTURE OF LAW AND FACT

It is settled law that a complaint about wrongful admission of evidence is a ground of law alone, a ground of appeal complaining that there was no evidence or no admissible evidence upon which a decision was based, is a ground of law. And an issue on legal interpretation of documents will be a ground of law, see, OGBECHIE V. ONOCHIE (1986) (supra). Also, every conclusion of law is founded on facts, it is when the facts are disputed, that the question of replaced facts and law arise, which would require the leave of the court in compliance with S. 241(1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria. See, A.G. KWARA STATE V. OLAWALE (1993) 24 NSCC (PT. 1) 110 at 128; (1993) 1 NWLR (PT 272) 45 at 673. Per CHIDI NWAOMA UWA, J.C.A.

JUSTICES

MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria

CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria

OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria

Between

GUARANTY TRUST BANK PLC Appellant(s)

AND

INNOSON NIGERIA LIMITED Respondent(s)

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the order absolute made by the Federal High Court sitting at Ibadan, presided over by Shakarho, J. on 29th July, 2011 against the Appellant and two others (Zenith Bank PLC and Afribank (now Mainstreet Bank).

The trial court ordered the banks to release from the Nigerian Customs Service Board (the 1st Judgment debtor’s) account the sums in those accounts in satisfaction of the judgment debt which stood at N2, 048,737,443.67 (Two Billion, Forty-Eight Million, Seven Hundred and Thirty Seven Thousand, Four Hundred and Forty Three Naira, Sixty Seven kobo) as per the Judgment creditor’s further affidavit No. 3 of 8th June, 2011.

The background facts on the Appellant’s part are that the Respondent in this case obtained judgment in the sum of N700,220,000.00 against the Nigerian Customs Service Board, thereafter the respondent obtained a garnishee order nisi against the Appellant and other banks named above. The order nisi was for N700, 220,000.00, which was served on the Appellant, the Appellant filed 2 affidavits to show cause, the first was filed on 27/9/11, where the Appellant disclosed that only the sum of N468.50 was standing to the credit of the Nigerian Customs Board (judgment debtor).

The Statement of Account of the “Customs Service” was attached as an exhibit to the affidavit to which the respondent filed a counter affidavit stating that there was no full disclosure as accounts existed in other names. The Appellant conducted further search using the name “Customs Service Board” where another account in the above name was discovered.

The Appellant thereafter filed a further affidavit to show the new information but, also disclosed in the affidavit that the funds in the said account do not belong to the Customs Service Board but, that the funds belong to the Federal Government and was remitted daily to the Federation Account. It was also disclosed that the balance in the said account was N4, 238,514.64 which was incapable of being Garnisheed since it was money belonging to the Federal Government and not the Customs Service Board.

The trial court made the order absolute ordering the Appellant to release funds from the account amounting to N2, 048,737,443.67 (2.04 Billion) despite the fact that the judgment sum was for N700 Million and there was no evidence that Appellant had 2.04 Billion Naira in its account which belonged to the Customs Board.

On the Respondent’s part, it was contended that the trial court gave judgment in favour of the Respondent in the sum of N700, 220,000.00 (Seven Hundred Million, Two Hundred and Twenty Two Thousand) plus 22% interest per annum on the judgment debt from the date of commencement of the suit until satisfaction of the judgment debt.

It is against this that the Appellant appealed being dissatisfied with the decision.

There were originally two (2) grounds of appeal with four (4) additional grounds of appeal filed, from which the following issues were distilled for the determination of this appeal. They are:

“(A) Whether from the law relating to garnishee proceedings, the learned trial judge was right to have made the order absolute against the Appellant.
(B) Whether from the affidavit evidence placed before the court there was evidence to show that funds existed to the benefit of the Customs Service Board to the tune of 2 billion Naira.
(C) Whether the Appellant did not make a disclosure as required by law.”

In response, the respondent raised a preliminary objection to the Appellant’s grounds of appeal in what he termed the 1st Notice of Appeal. In alternative argument the learned counsel to the respondent raised a sole issue for the determination of this appeal. That is:

“Whether in the circumstance of the case the learned trial judge was right in making the garnishee order absolute against the Appellant.”

When the appeal was argued the learned counsel to the Appellant, O.A. Olasope Esq. adopted and relied upon his brief of argument dated 28/10/13 filed on 29/10/13 and his reply brief dated 6/11/13 filed on 7/11/13 in urging us to allow the appeal and dismiss the preliminary objection and do substantial, rather than technical justice.

In arguing his first issue, the learned counsel to the Appellant referred to the law governing garnishee proceedings, particularly, Section 83 of the Sheriffs and Civil Process Act, CAP 467 Laws of the Federation and the Judgment Enforcement Rules. Learned counsel also defined the purpose of garnishee proceedings.

The learned counsel to the Appellant agreed that in the present case the Appellant was required to pay sums of money accruing to the Customs Service Board to the Respondent, on condition that the money must be due or have accrued to the judgment debtor for it to be liable to garnishment, see, DUNLOP & RANKEN V. HENDALE (1957) 3 ALL E. R. 344 AT 347, UBA V. SGB (1996) 10 NWLR (PART 478) 381 AT 390.

While the Appellant made out in its affidavit that, what was to the credit of the Appellant was N468.50 in the account of the Customs Service Board, the further affidavit disclosed that the sum of N4.2 Million did not belong to the judgment debtor and was therefore not liable to be garnisheed as it belonged to the Federal Government, transmitted daily into the Federation Account.

It was the argument of the learned counsel that the Respondent in their counter affidavit before the lower court to which Exhibit ‘A’ the statement of account was attached showed that the balance of the account of the judgment debtor was N468.50 only, denied in paragraph 4A of same that, that was not the state of the account and nothing more and yet the lower court disregarded the same exhibit, Page 68 of the printed records, which the learned counsel to the appellant contended was wrong on the part of the trial court.

It was also argued that since there were contradictions in the affidavit and the counter affidavit, the court ought not to have believed the respondent or made an order absolute, but instead call oral evidence to clear the contradictions, see, NWOSU V. IMESA (1990) 3 NWLR (PART 135) 688 AT 718. In the alternative, that the lower court ought to have ordered for an inquiry to determine what the true position was if the Appellant’s depositions were doubted. See UBA v. SGN (supra) this is in line with the provisions of Order 8 Rule 8(2) of the Judgment Enforcement Rules.

It was contended that the trial court was in error to have made the order absolute contrary to the law and practice of garnishee proceedings.

It was submitted that the appellant had done all that it was required to do by attaching the statement of account at pages 8-11 of the printed records covering the date of 11/3/11 and that it was a statement from January, 2010 till May, 2010 when operation ceased on the said account. It was argued that the finding of the trial court that good faith was not shown was erroneous. We were urged to set aside the said finding.

It was further argued that there was nothing on record to show how the judgment sum for N700 Million became absolute for the sum of N2 Billion. We were urged to set aside the award of N2 Billion since same was not proved being in the form of general damages. We were urged to allow the appeal.

In response to the argument proffered on behalf of the appellant, the learned counsel to the respondent Prof. J.N.M. Mbadugha Esq. filed a preliminary objection on 5/11/13 (dated 4/11/13) which was argued in his brief of argument dated and filed the same day. He adopted and relied on the said brief as his argument in support of the preliminary objection and the substantive appeal in the alternative.

In the preliminary objection, we were urged to dismiss this appeal for the incompetence of the Notice of Appeal dated 1st August, 2011 and additional grounds of appeal dated 26th September, 2011 as well as the issue argued by the appellant.

The grounds for the objection were given as follows:

“(a) the grounds of appeal contained in the Notice of Appeal dated 1st August, 2011 and additional grounds of appeal dated 26th September, 2011 are vague, general in terms, narrative, lengthy and verbose;
(b) the issue as argued by the Appellant is incompetent.

TAKE FURTHER NOTICE that the Respondent will rely on the Record of Appeal certified on 27th September, 2011.”

In arguing his objection, it was submitted that Ground one of the Notice of Appeal is of mixed law and fact and cannot be encompassed in one ground of appeal. In the alternative, concerning the same ground one of the Notice of Appeal, without conceding that it is not general in terms, it was submitted that the particulars are narrative, argumentative, vague, unwieldy, incomprehensible and unrelated to it, or does not flow from it, see, KHALI V. YAR’ADUA (2003) 16 NWLR (PART 847) 446; C.B.N V. OKOJIE (2002) 8 NWLR (PART 768) 48.

It was argued that the particular attached to ground one does not flow from the ground. We were urged to strike out the particular and the ground of appeal as they are incompetent.

In respect of ground two, it was submitted that it has no particular and therefore incompetent by virtue of the provisions of Order 6 Rules 2(2) of the Court of Appeal Rules, 2011, see, OBI V. OWOLABI (1990) 5 NWLR (PART 153) 702 and LUCAS PHARMACEUTICAL CHEMIST LTD V. ROCHE (NIG.) LTD. (1995) NWLR (PART 369) 28 AT 36 PARAGRAPHS A-B. We were urged to strike out ground 2 for being incompetent.

It was the submission of the learned counsel to the respondent that the additional grounds of appeal were filed to compliment the original grounds and if same have been found incompetent, the additional grounds 1-4 cannot stand and should be declared incompetent.

In the alternative, it was argued that the Appellant’s grounds of appeal and the additional grounds of appeal are of mixed law and facts and as such cannot be condensed into a ground. We were urged to hold that the original and the additional grounds of appeal are vague and incompetent, see, METAL CONSTRUCTION (W.A) LTD V. MIGLIORE (1990) 1 NWLR (PT. 126) 299 and NWADIKE V. IBEKWE (1987) 12 SC 12 AT 17 – 22, LINES 5-6.

Further, that all the grounds of appeal being of mixed law and facts or facts for which the Appellant has no right of appeal except with the leave of the Court which the Appellant in this case did not obtain renders the appeal incompetent and liable to be struck out, see, SECTION 241 (1)(a) and (b) OF THE 1999 CONSTITUTION of the Federal Republic of Nigeria and the cases of IROEGBU V. OKWORDU (1990) 10 SCNJ AT 103; AMADASUN V. UME (2007) 13 NWLR (PT. 1053) 219 and NIGERIAN AIR FORCE V. SHEKETE (2002) 18 NWLR (PT. 298) 129.

On the three issues formulated by the Appellant, it was submitted that the issues were formulated from incompetent grounds or alternatively assuming some of the grounds are competent that having argued all the issues together means that competent and incompetent grounds were utilized to formulate the issues canvassed together, making same incompetent, see, LAAH V. OPALUWA (2004) 9 NWLR (PT. 879) 558 AT 570 PARAGRAPHS C-E. We were urged to dismiss the appeal as the grounds and issues are incompetent.

In the alternative, the learned Counsel to the Respondent proffered argument in support of his sole issue for determination, that is, whether in the circumstance of this case the learned trial Judge was right in making the garnishee order absolute against the Appellant.

In support of his submissions, the learned Counsel to the Respondent referred to the affidavit of 6th March, 2011 filed by the Appellant (5th garnishee) in response to the order to show cause, pages 6-7 of the printed Records of Appeal, paragraph 4. In response to the Appellant’s affidavit, the Respondent filed a counter affidavit on 23rd March, 2011, Pages 28-30 of the additional records, paragraph 3, page 9 of the additional records. The Appellant also filed a further affidavit to show cause on 18th April, 2011, pages 15-16 of the records.

It was submitted that the Appellant did not deny paragraph 3 of the Respondent’s counter affidavit of 23rd March, 2011 and did not respond to sub-paragraphs (b) and (c), which are deemed admitted, see, ONYEKWELI VS. INEC (2008) 14 NWLR (PT. 1107) 317 AT 360 PARAGRAPHS B & H.

It was argued that Exhibit “A” attached to the Appellant’s affidavit of 16th March, 2011 which had an opening balance did not show the closing balance contrary to the trite practice that every bank statement (Statement of Account) should have opening and closing balance, pages 24-27 of the additional records of appeal. Paragraph 4b (1) of the same affidavit of 16th March, 2011 was argued to be inconsistent with paragraph 4 (c) (i) of its further affidavit of 18th April, 2011. It was argued that since there are contradictions in the affidavits filed by the Appellant, the case canvassed by the Appellant is destroyed.

It was submitted that the trial Court was therefore right to have made the garnishee order absolute against the Appellant. Reference was made to the lower Court’s analysis and evaluation of the affidavit evidence above utilized in making the order absolute against the appellant, pages 65-71 of the printed records. Also page 57, paragraphs 1 and 2, page 55 paragraph 1 of the printed records of appeal. It was submitted once again that the trial Court was right in making the garnishee order absolute against the Appellant.

It was argued that where there is a conflict in affidavit evidence, it cannot be resolved by oral evidence if there is documentary evidence to resolve the conflict. The trial Judge was said to have been right in not calling oral evidence to resolve the purported conflict in the affidavit evidence.

It was the contention of the learned Counsel to the Respondent that at page 16, paragraph 3b of the additional records, it was shown that the judgment debt is N700, 220.00 plus 22% interest from 19th July, 2006 until the satisfaction of the judgment debt, page 4 paragraph 2a of the records of appeal, page 73 paragraph 2, lines 7-9 of the records.

It was concluded that there was evidence before the trial Court showing how the debt became N2 Billion and that the learned trial Judge was right in making the order absolute for N2 Billion as the Respondent satisfied the condition necessary for the grant of the order.

In response to the submissions of the learned Counsel to the Respondent, the learned Counsel to the Appellant in his reply brief submitted that the objection of the learned Counsel is misconceived as the grounds of appeal are straight forward, simple and complied with the rules of this court. Also, that the grounds of appeal are not ambiguous as to what the grounds are complaining about, as such are competent. See, BEST (NIG.) LTD. V. BLACKWOOD HODGE (2011) ALL FWLR (PT. 573) 1955 AT 1967. Further, that ground 2 of the original grounds and 4 of the additional grounds, both contain inbuilt particulars which made them competent. It was the contention of the learned counsel to the Appellant that all the other grounds contain particulars and what the complaints are all about.

It was also submitted that the objection is an invitation to technical justice which should not be allowed. See, BEST V. BLACKWOOD HODGE (SUPRA), Also, ODONIGI V. OYELEKE (2001) FWLR (PT. 42) 172 AT 185. We were urged to dismiss the objection as it is lacking in merit.

It is trite that where a preliminary objection has been raised, objecting to part of or the entire grounds and/or issues, (in this case, on appeal) the objection must first be resolved. Resolution of part of or entire substantive matter would be gone into if the need arises.

The learned counsel to the Respondent had argued that the two initial grounds of appeal and the additional four grounds are vague, unrelated and do not flow, therefore incompetent. It is trite that grounds of appeal should reflect the real crux of the appeal, in other words, express the real issues in controversy not the form in which the drafting has been done. I have examined the grounds of appeal objected to by the learned Respondent’s counsel. I do not think they are vague and narrative. Once a ground or grounds are clear and unambiguous as to the complaint on appeal as in the present case, it is enough.

In respect of ground two of the original Notice of appeal, I am of the humble view that the particulars are inbuilt. The essence of particulars to a ground of appeal is to explain or substantiate on the ground or grounds.

Where the particulars are incorporated and embedded in the ground of appeal, as in this case, it does not make ground 2 incompetent. This method I would term as a “short cut” in drafting and formulating grounds of appeal by the learned counsel to the Appellant.
Although Order 6 Rule 2(2) of the Rules of this Court, 2011 provides for the mandatory “shall”, it is not every breach of the rule that can result in the sanction of striking out the ground. Where the ground of appeal itself gives adequate or sufficient information as to the nature, content of the error of law (as in this case) complained of, a Court of Appeal will not strike out the ground of appeal on the only ground that particulars were not separately supplied. In other words, where a ground of appeal performs the dual role of setting out the ground simpliciter as well as stating the particulars thereof in such a way that both the court and the Respondent are not misled, a Court of Appeal would be reluctant to strike out the ground, see a decision of this court in N.B.N. LTD V. OPEOLA (1994) 1 NWLR (PT. 319) 126 at 137. Even if the ground is considered inelegant by not stating the particulars, it does not make ground 2 vague since the content is clear and the Respondent is not confused or misled by this. See, the decisions of the Apex Court in SHYLLON V. ASEIN (1994) 6 NWLR (PT. 353) 670 at 685 and 693, ATUYEYE V. ASHAMU (1987) 1 NWLR (PT. 49) 267 at 268 and OGBECHIE & ORS V. ONOCHIE & ORS (1986) 2 NWLR (PT. 23) 484 at 487. I hold the humble view that ground 2 of the original grounds of appeal is self explanatory and does not need any particulars to understand its purport. It is not vague.
In GLOBAL V. FREE ENT. (2001) 12 W.R.N. 137 at 150; (2001) 5 NWLR (PT. 706) 426 at 439 his Lordship Kalgo, JSC of the Apex Court in this respect held thus:
“Where the ground of appeal is couched or framed in such a way as to incorporate or contain particulars of error or misdirection complained of and their nature, (as in this case) without necessarily setting them out as usual under a separate heading of particulars, it cannot be said that the Appellant has failed to supply particulars of error or misdirection in such ground.”

See, ATUYEYE V. ASHAMU (1987) 1 NWLR (PT. 49) 267. Similarly, grounds 3 and 4 of the additional grounds of appeal which did not have separate particulars set out under a separate heading after the grounds of appeal.

It was also alleged by the learned counsel to the Respondent that the original grounds 1 and 2 are incompetent; therefore that the additional grounds 1-4 should be declared incompetent being a continuation of the above grounds 1-2. Since I have held that the initial grounds 1 and 2 of the Notice of Appeal are competent, the argument of the learned counsel to the Respondent in this respect is not tenable in law.

The alternative argument of the learned counsel to the Respondent as to the incompetence of all the grounds of appeal is to the effect that, all the grounds are of mixed law and fact and cannot be condensed into a ground, and that leave of Court is required before these grounds could be formulated into issues for resolution.

In order to determine whether a ground of appeal is of law, facts or mixed law and fact, it would involve an examination of the particular ground or grounds of appeal, whatever the case may be, together with the particulars where provided. See, OJEMEN & ORS V. H. H. WILLIAM O. MOMODU II & ORS (1983) 1 S.C.N.L.R. 66, 1983 1 S.C. 173; NWADIKE & ORS V. IBEKWE & ORS (1987) 4 N.W.L.R. (PT. 67) 718 and OLANREWAJU V. OGUNLEYE (1997) 2 NWLR (PT. 485) 12 at 24.
It is settled law that a complaint about wrongful admission of evidence is a ground of law alone, a ground of appeal complaining that there was no evidence or no admissible evidence upon which a decision was based, is a ground of law. And an issue on legal interpretation of documents will be a ground of law, see, OGBECHIE V. ONOCHIE (1986) (supra). Also, every conclusion of law is founded on facts, it is when the facts are disputed, that the question of replaced facts and law arise, which would require the leave of the court in compliance with S. 241(1) (a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria. See, A.G. KWARA STATE V. OLAWALE (1993) 24 NSCC (PT. 1) 110 at 128; (1993) 1 NWLR (PT 272) 45 at 673.
Therefore, if the facts, including any particulars thereof, upon which the grounds of appeal is based are disputed facts, those that require further resolution by the court, then such a ground of appeal is one of fact. But, where such are settled or admitted facts, then the ground is one of law.

Applying the above principles of law (supported by the plethora of cases cited and relied upon above) in the present case, it can be seen that although each ground of appeal contains either separately set out particulars or inbuilt particulars (as I earlier held in this judgment) of facts to support the grounds, but it is clear that some of the facts are not agreed upon by the parties, they are in dispute or requires determination by the court.

A careful examination of ground 2 of the original Notice of appeal and grounds 2 and 4 of the additional grounds of appeal in this case with their particulars of error (set out or inbuilt) reveal that the Appellant is questioning the evaluation of the facts by the lower court before the application of the law and therefore these grounds involve a question of mixed law and fact. In ABIDOYE V. ALAWODE (2001) 13 W.R.N. 71 at 80; (2001) 6 NWLR (PT. 709) 463 at 472, His Lordship Onu, JSC in this respect explained the determinant thus:
“What is important in determining whether a ground of appeal involved questions of law or fact or mixed law and fact, is not its cognomen, nor its designation as “Error in Law”. It is rather the essence of the ground, the reality of the complaint embedded in that name that determines what any particular ground involves. See also UNITED BANK FOR AFRICA LTD. V. STAHIBAU GMBH & CO. (1989) 3 NWLR (PT. 110) 374 at 377 and 410 and OJEMEN V. MOMODU (1983) 3 S.C. 173.”
It is a known fact that there is a thin line between law simpliciter and mixed law and fact. The fact that a learned counsel labels a ground of mixed law and fact “error of law” or “misdirection in law” does not convert such ground into a ground of law, see, NWADIKE V. IBEKWE (supra).
The appellation given to it by learned counsel does not therefore matter, it is the duty of the court to examine the nature of the real complaint and the particulars before arriving at its view. The issue of fact is easier to determine.

The leave of the lower court or this court not having been sought and obtained, these grounds are incompetent, these are, ground 2 of the original grounds, grounds 2 and 4 of the additional grounds of appeal. The said grounds are for this reason, struck out.

The learned counsel formulated three issues but argued them together in his brief of argument; the learned counsel to the Respondent had urged us to strike out same as incompetent. There were three issues raised by the Appellant, even if issues two and three are done away with, the Appellant’s first issue would still sustain the appeal. Further, ground 1 in the original grounds and grounds 1 and 3 of the additional grounds can sustain the appeal as these encompass the main complaint in the appeal; which is also covered by the Respondent’s sole issue. I hold that the preliminary objection succeeds in part.

In the alternative the learned counsel to the Respondent responded to the arguments of the learned counsel and formulated a sole issue for the determination of the appeal. The Respondent’s sole issue is covered by the Appellant’s first issue. I would adopt same for the determination of this appeal. That is: Whether in the present circumstances, the learned trial judge was right to have made the garnishee order absolute against the Appellant? Garnishee proceeding in Black’s Law Dictionary, 5th Edition, page 612 has been defined as follows:
“A statutory proceeding whereby a person’s property, money, or credit in possession or under control of, or owing by, another are applied to payment of former debt to third person by proper statutory process against debtor and garnishee.”
This Court in STB LTD. V. CONTRACT RESOURCES (NIG.) LTD. (2001) 6 NWLR (PT. 708) P. 115 at p. 123, His Lordship Olagunju, JCA defined a ‘garnishee’ as follows:
“…a garnishee is a third party who is indebted to the judgment debtor or having custody of his money and who at the instance of the judgment creditor is being called upon to pay the judgment debt from his indebtedness to the judgment debtor or from the creditor of the judgment debtor in his account with the third party.”
See, also UBA LTD. V. SGB LTD. (1996) 10 NWLR (PT. 478) 381 at 383 and 390.

As submitted by the learned counsel to the Appellant, garnishee proceedings are governed by law, particularly Section 83 of the Sheriffs and Civil Process Act, CAP 467 Laws of the Federation and the Judgment Enforcement Rules. The purpose of garnishee proceedings is to order a third party to pay direct to the judgment creditor the debt clue or accruing from him to the judgment debtor or so much as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceeding.

The learned counsel to the Appellant has adequately given the circumstances under which the garnishee proceedings are applicable. The money must be due or have accrued to the judgment debtor for it to be liable to garnishment. In the present case, the learned Counsel to the Appellant has argued that the Appellant can only give out what has accrued to the judgment debtor and nothing more. It was also made out that all that was due to the Customs Service Board was the sum of N468.50 in the account of the customs service board revealed in the affidavit of the Appellant to show cause while the further affidavit showed the sum of N4.2 million in the account which does not accrue to the judgment debtor and was therefore not liable to garnishment. It was argued that the trial court could only have made the order absolute against the Appellant for the sum of N468.5, the sum of money the Appellant alleged was the only amount standing to the credit of the judgment debtor, which the judgment debtor would honestly give and due to the judgment debtor.

The garnishee proceeding that led to this appeal was fought purely on affidavit evidence on behalf of the parties. It is necessary to examine same upon which the order was challenged and responded to.

The judgment was delivered in favour of the plaintiff on 18/5/10, the order Nisi was granted on 2/3/11, upon the Motion Ex parte filed by the Judgment-Creditor, that the Garnishee shall appear before the Honourable Court to show cause why they should not pay the Judgment-Creditor the debt due to the Judgment-creditor. The affidavit to show cause was filed by the Appellant (5th Garnishee) on 16th March, 2011 deposed to by one Olawale Akinwusi an Administrative Officer of Oladipo Olasope and Co., Legal Practitioners, as follows, in paragraphs 4 and 5 of the affidavit, pages 6-7 of the printed records of appeal and pages 22-23 of the additional records of appeal, thus:

4. “a. That the Garnishee order Nisi dated 2nd of March, 2011 made by this Honourable Court was served on the 5th Garnishee on 3rd March 2011.
b. That the 5th Garnishee thereafter conducted a comprehensive search into its records and discovered the following:
i. That the 1st Judgment Debtor maintains an account with the 5th Garnishee and the balance in the said account is N468.50k.
The statement of account is attached herewith marked Exhibit A.
ii. That the 2nd Judgment Debtor does not maintain any account with the 5th Garnishee.
5. That I swear to this oath in good faith.”

In response to the Appellant’s affidavit to show cause, the Respondent filed a counter affidavit on 23rd March, 2011, at pages 12-14 of the printed records of appeal and pages 28-30 of the additional records. It was deposed to by one Felicia Ogugua Nwaugbe, the Secretary to McCarthy Mbadugha & Co., solicitors to the Judgment Creditor/Applicant. Of note is paragraph 3, in which it was deposed as follows:

3. That I have seen and read the 5th Garnishee’s affidavit of 16th March, 2011 and I know that paragraphs 4a-5 of the said affidavit are false and in further answer our Professor J. McCarthy Mbadugha (of Counsel) informed me at about 12 p.m. on 22nd March 2011 at our law firm in the above address and I verily believe same that:

a. As at the time the order of 2nd March 2011 was served on the 5th Garnishee on 3rd March 2011 the 1st Judgment debtor had up to Ten Billion Naira (N10,000,000,000.00) to its credit in its account with the 5th Garnishee:
b. The 1st Judgment debtor’s statement of account attached to the 5th Garnishee’s affidavit of 16th March 2011 as Exhibit A is false – it is the 1st Judgment debtor’s statement of account for the period 5th January 2010 – 12th May 2011 (should be 2010) and did not show the 1st Judgment debtor’s balance as at 3rd March 2011;
c. Nigerian Custom Services of whom the 1st Judgment debtor is liable for its action has accounts with the 5th Garnishee and credit balances thereto in excess of Five Billion Naira (N5,000,000,000.00);
d. The court’s order of Garnishee Nisi of 2nd March 2011 was in respect of the debt due to the judgment debtors and the non-statutory or the unincorporated Federal Government Agency for which the judgment debtors were sued or for which the judgment debtors are statutorily/legally liable for the actions;
e. The 1st judgment creditor is statutorily/legally liable for the actions of the Nigerian Custom Services and the 1st Judgment debtor was sued in this suit for the action of the Nigerian Custom Services.”

The Appellant thereafter on the 18th April, 2011 filed a further affidavit to show cause, pages 15-16 of the records of appeal. In paragraphs 4(a), (b), (c) (i)-(iv), it was deposed as follows: (by Olawale Akinwusi):

4.” (a) That the Garnishee Order Nisi dated 2nd of March, 2011 made by this Honourable Court was served on the 5th Garnishee on 3rd March, 2011.
(b) That the garnishee complied and filed affidavit to show cause and the Statement of Account of the “Nigerian Customs Service” was exhibited with the affidavit to show cause.
(c) That the 5th Garnishee thereafter conducted further search into its records using the name “Nigerian Customs Service Board” and discovered the following:
(i) That the 1st Judgment Debtor maintains revenue accounts only with the 5th Garnishee and when merged, the total sum standing to the credit of the revenue accounts as at 23 March 2011 is N4, 238,514.64 (Four Million, Two Hundred and Thirty-Eight Thousand, Five Hundred and Fourteen Naira, Sixty-Four Kobo Only).
(ii) That the said accounts are Customs Duty and Customs Revenue accounts for the purpose of collecting customs duties and other levies from various importers on behalf of the Government of the Federal Republic of Nigeria.
(iii) That the said funds are remitted daily to the federation account with the Central Bank of Nigeria because the funds in the accounts belong to the Federal Government of Nigeria.
(iv) That the 2nd Judgment Debtor does not maintain any account with the 5th Garnishee.
5. That I swear to this Oath in good faith.”

From the depositions in the Appellant’s further affidavit of 18/4/11 which ought to counter or explain or answer to the contents of the counter affidavit of the Respondent’s of 23/3/11, it is clear that the Appellant did not deny the contents of paragraphs 3(a)-(c) of the counter affidavit which gave details of the huge sums of money to the credit of the 1st Judgment Debtor as at the time the order of 2nd March, 2011 was served on the Appellant on 3rd March, 2011, to the effect that, at the time the 1st Judgment Debtor had up to Ten Billion Naira (N10,000,000,000.00) to its credit in its account with the Appellant.

In Paragraph 3(b) it was averred that Exhibit ‘A’ the statement of account of the Judgment Debtor attached to the Appellant’s affidavit of 16/3/11, was alleged to be false. Exhibit “A” covered the period from 5th January, 2010 – 12th May 2010 (pages 8-11 of the printed records of appeal and 24-27 of the additional records), even though dated 11/3/2011 it clearly did not cover the period in issue, the balance as at 3rd March, 2011.

In respect of Exhibit ‘A’ I am of the view that the learned trial judge was right in disregarding same when he held that the said Exhibit (the statement of account) did not address or cover the period relevant to the garnishee proceedings. At page 66 of the printed records of appeal, the trial court held as follows:

“The 5th Garnishee attached Exhibit ‘A’ which is a statement of account. On Exhibit ‘A’ the opening balance date was 5th January, 2010 while the last day was 12th May, 2010 with a balance sum of N468.50 credit.”

Further at page 68:

“The Applicant denied by a counter affidavit the depositions of the 5th Garnishee. It is obvious that the content of Exhibit ‘D’ (should be ‘A’) does not sufficiently address the period relevant to the garnishee proceedings. Although, the 5th Garnishee admitted the sum of N4, 238,514.00. I am of the firm view that the 5th Garnishee has not disclosed utmost good faith as regards the proceedings. I shall disregard what is contained in Exhibit ‘A’ filed by the 5th Garnishee.”

I cannot fault the above view.

In paragraph 3(c) of the counter affidavit, it was deposed that the Nigerian Custom Services of whom the 1st Judgment debtor is liable had a credit balance in excess of Five Billion Naira (N5, 000,000,000.00). This deposition was not denied by the Appellant in its further affidavit but, the sum of N4.2 million in the account was explained away as money belonging to the Federal Government which was transmitted daily into the Federation account.

In my considered view the learned trial judge in respect of the contents of paragraphs 3(a) – (c) of the Counter Affidavit of the Applicant (now Respondent) not denied by the Appellant was right when he held at pp. 70 – 71 of the printed records of appeal thus:

“The above were not sufficiently denied as the 5th Garnishee failed to address the depositions at sub-paragraphs (a), (b) and (c) of paragraph 3. The 5th Garnishee failed to disclose the said account. I agree more with the Applicant that the 5th Garnishee and hold that the amount declared outstanding to the credit of the 1st Judgment Debtor is far below what it has with 5th Garnishee.”

The argument of the learned counsel to the Respondent and conclusion of the learned trial judge cannot be faulted. I am at one with same. The learned counsel to the Appellant had argued that this money was not liable to be garnished as it did not belong to the judgment debtor and was money not accrued to the judgment debtor. Looking closely at the depositions, in Paragraph 4b(i) of the Appellant’s affidavit to show cause of 16/3/11, it was deposed that the balance of the 1st Judgment Debtor’s Account with the Appellant is N468.50k and it was supported by the statement of Account, Exhibit ‘A’. While in paragraph 4 (c) (i) of the Appellant’s further affidavit to show cause of 18/4/11 the Appellant admitted the existence of an account belonging to the 1st Judgment Debtor with the Appellant, which was tagged a revenue account. The account had the sum of N4, 238,514.64 (Four Million, Two Hundred and Thirty Eight Thousand, Five Hundred and Fourteen Naira, Sixty-Four Kobo). In my humble view the ‘revenue accounts’ were operated by the 1st Judgment Debtor. The use the funds are to be made use of or the purpose for which the account was operated is immaterial. The important thing is that the account was operated by and belongs to the 1st Judgment debtor. The learned counsel to the Appellant had argued that the money in the “revenue accounts” belong to the Federal Government transmitted daily into the Federation Account. The N4.2 Million stood as credit. The fact that it was for a particular purpose does not mean it did not belong to the Board, the 1st Judgment Debtor. The money had not yet been transmitted into any account belonging to the Federal Government and the Federal Government would not (and did not) lay claim to the funds in the accounts maintained by the 1st Judgment Debtor. It could only lay claim to the funds on transmission of same to its Federation Account, and I so hold.

Concerning the contents of the Appellant’s affidavit to show cause of 16/3/11 which is inconsistent with the contents (highlighted above) of its further affidavit to show cause of 18/4/11, the Appellant is blowing hot and cold. In one breath maintains the 1st Judgment debtor had only the sum of N468.50 to its credit in its account and another admits the existence of the sum of N4.2 Million Naira in some other accounts operated by the 1st Judgment Debtor but, made out that it was funds for a particular purpose.
This has weakened the Appellant’s case through depositions on its behalf in the various affidavits. The further affidavit revealed the existence of funds concealed in the affidavit to show cause.

The learned counsel to the Appellant had argued that if there are contradictions in the affidavit and counter affidavit the court should not believe one side and reject the other but, call oral evidence to clear the contradictions. Yes, this is the correct position of the law when the affidavits evidence are from both sides but contradictory. See, GOVERNMENT OF ASHANTI V. ADJUAH KORKOR & ORS. 4 WACA 83, AKINSETE V. AKINDUTIRE (1966) 1 ALL NLR 147 at 148, OLU-IBUKUN V. OLU-IBUKUN (1974) 9 N.S.C.C. 91 at 95, UKU V. OKUMAGBA (1974) 9 N.S.C.C. 128 at 140 – 141, NATIONAL BANK V. ARE BROTHERS (1977) 11 N.S.C.C. 382 at 388 and EBOH V. OKI (1974) 9 N.S.C.C. 26 at 31-32. The situation is different in the present case, in that the two affidavits in question right now were deposed to on behalf of the Appellant. In this case oral evidence would not be called to reconcile same, the law is that, such affidavit evidence would work against and weaken the case being made out by the party through his affidavit evidence. In the case of ARJAY LTD. V. A.M.S. LTD. (2003) 7 NWLR (PT. 820) 577 at 627 paragraphs, C-F. His Lordship, Ogundare JSC succinctly put the two scenarios this way:
“Only the plaintiff filed the two affidavits before the trial court. The second affidavit appears to contain some facts not deposed to in the first affidavit.
This, in my respectful view cannot be described as conflict in affidavit evidence. In any event, for ASAIYE V. REGISTERED TRUSTEES OF CHRIST APOSTOLIC CHURCH (supra) to apply, the two parties must have filed affidavits contradictory of each other requiring oral evidence to be called to resolve the conflict; such conflict is not resolved by the court preferring one version to the other without oral evidence FALOBI v. FALOBI (1976) 10 NSCC 576. This is not the situation in this case. Where a party files affidavits and there are contradictions in those affidavits, that only goes to destroy or, at least, weaken the case being canvassed by that party through his affidavit evidence. It is not a case of oral evidence being required to resolve the contradictions.”

The argument of the learned counsel to the Appellant that oral evidence ought to have been called by the trial court to resolve inconsistencies in its affidavit evidence as to the existence of funds belonging to the 1st Judgment Debtor in its accounts does not hold water, same is discountenanced. The trial court was not duty bound to conduct any inquiry to ascertain the true position as suggested by the learned counsel to the Appellant when both affidavits came from the Appellant.
The learned trial judge was right not to have called oral evidence, the need did not arise.

The learned Counsel to the Appellant had argued that the judgment sum was for N700 Million while the trial court made the order absolute for N2 Billion and that there was nothing on record to show how the debt became N2 Billion. We were urged to set aside the award for the N2 Billion since it was not proved before the court.

At page 16, paragraphs 3(a) – 3(b) of the additional records of Appeal (as highlighted by the learned counsel to the Respondent) in the affidavit in support of the application it was deposed as follows:

3. “That I know as of fact that:
(a) On 19th July 2006, the Judgment Creditor/Applicant filed Suit No. FHC/L/CS/603/2006 against the Judgment Debtors/Respondents by causing a writ of summons to be issued against them;
(b) On 18th May 2010 (sic, 20th December 2010), the learned trial judge in suit No.: FHC/L/CS/603/2006, Honourable Justice J.E. Shakarho delivered final Judgment in the suit in favour of the Judgment Creditor/Applicant in the following terms:
(i) Seven Hundred Million, Two Hundred and Twenty Two Thousand Naira N700, 220,000.00);
(ii) 22% interest on the Judgment debt from the date of commencement of action per annum;
(iii) 22% interest on the Judgment debt until the final liquidation of the judgment debt per annum.”

Further at page 4, paragraph 2(a) (the enrolled order of court) the liability of the Judgment Debtor along the same line as above is to the effect that the judgment debt was N700, 220,000.00 plus the interest on same at the rate of 22% from 19th July, 2006 until the entire sum due to the Judgment Creditor is paid pursuant to the judgment of the trial court.
The learned counsel to the Appellant faulted the figure of N2 Billion but, did not come up with a different figure based on his calculation of the debt due with the interest as highlighted above. If a wrong calculation is perceived, then it is expected that a better calculation be done and included in the affidavit evidence in this case. This Court would then be in a position to decide which of the two figures is accurate. The argument of the learned counsel in this respect is not tenable, I also discountenance same.

I cannot see any reason to fault the order of the learned trial judge, at page 73 of the printed records of appeal making the order Nisi absolute for the release by the Appellant from the 1st Judgment Debtor’s accounts in satisfaction of the judgment which stood at N2,048,737,443.67 (Two Billion, Forty-Eight Million, Seven Hundred and Thirty-Seven Thousand, Four Hundred and Forty-Three Naira, Sixty-Seven Kobo) as at the date of the order, 29/7/11. I endorse same, the Respondent having satisfied the conditions for the grant of the order absolute.

In the final analysis, the order absolute is hereby affirmed. The appeal is without merit, I dismiss same. The Ruling of the trial judge Shakarho, J. of the Federal High Court, delivered on 29th July, 2011 in Suit No. FHC/L/CS/603/2006 is hereby affirmed.

Parties to bear their respective costs.

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: I have nothing useful to add to the lead judgment prepared by my learned brother Chidi Nwaoma Uwa JCA. The decision of the Federal High Court holden at Ibadan pronounced by Hon. Justice J. E. Shakarho (J) on the 29th day of July, 2011 is hereby affirmed and the consequential orders are as made in the lead judgment.

OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft, the lead judgment delivered by my Lord Chidi Nwaoma Uwa J.C.A.

My Lord covered all the salient questions that arose under the issue for determination and came to a conclusion that I entirely agree with. I am also of the view that the appeal lacks merit.

It is accordingly dismissed.

Appearances

O. A. Olasope Esq.For Appellant

AND

Prof. J. N. M. Mbadugha Esq.For Respondent