HERITAGE BANK PLC v. C.G.C. (NIG) LTD (2022)

HERITAGE BANK PLC v. C.G.C. (NIG) LTD

(2022)LCN/16799(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Tuesday, July 26, 2022

CA/ABJ/CV/993/2020

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

HERITAGE BANK PLC APPELANT(S)

And

C.G.C. NIGERIA LIMITED RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON GARNISHEE PROCEEDINGS

In otherwords, the judgment that gave rise to the Garnishee proceedings does not include the Appellant either as a plaintiff or a defendant. Thus, Garnishee proceedings are sui generis and as rightly submitted by the Appellant’s counsel, parties to a garnishee proceeding are the judgment creditor and the Garnishee. In CBN V INTERSTELLA COMM LIMITED, (2018) 7 NWLR (pt 1618) 294 AT 393 and MUCAS HOSPITAL LTD V FASUYI, (2004) 8 NWLR (pt 874) 67, AUTO-IMPORT V J.A.A. ADEBAYO & ORS, (2005) 19 NWLR (pt 959) 44 at 126, AFRICAN INSURANCE DEVELOPMENT CORP V NIGERIA LIQUEFIED NATURAL GAS LTD, (2000) 4 NWLR (pt 653) 494 at 505-506 and NDULUE V IBEZIM, (2002)12 NWLR (pt 780)137 at 165 held to the effect that by virtue of the Judgments (Enforcement) Rules LFN that:-
“where a person not being a party in a proceeding obtains an Order or has an order made in his favour, he shall be entitled to enforce obedience to such Order by the same process as if he were a party in the proceeding, and any person not being a party in a proceeding against whom obedience to any judgment may be enforced, shall be liable to the same process for enforcing obedience to such judgment as if he were a party to the proceeding.”
PER SENCHI, J.C.A.

WHETHER OR NOT A PARTY CAN APPROBATE AND REPROBATE WHEN HANDLING THEIR MATTER

A party is not allowed to approbate and reprobate in the handing of their matter. It is the same thing as blowing hot and cold. See INTERCONTINENTAL BANK LTD V BRIFINA LTD, (2012)13 NWLR PAGE 1 at 22. In the case of LUKE OKORO & ORS V HILARY EGBUOH & ORS, (2006) LPELR 2491 SC per TOBI, JSC had this to say on the subject: An appellate Court will be guided by the principle of law that a party is bound to make the same case both at the trial Court and the Court of Appeal. An appellate Court will not encourage, or better, allow a party make a case at the trial Court and then take or make a somersault on appeal. That will tantamount to blowing hot and cold with the same breath; a conduct which equity with its hands of fairness and fair play, will not allow.” PER SENCHI, J.C.A.

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Justice of the Federal Capital Territory, Abuja in Suit No. FCT/HC/M/5092/2020 delivered on the 29th day of September, 2020 by Honourable Justice O. A. OTALUKA.

The Respondent (as Judgment Creditor/Applicant at the lower Court) by a Motion on Notice dated and filed on the 6th day of February, 2020 prayed the Court for the following:
“(1) An Order of this Court re-opening the garnishee proceedings against the 15th garnishee on ground of palpable fraud concealment of fact by the 15th Garnishee.
(2) An order vacating the Order discharging the 15th Garnishee made by this Honourable Court on the 19th February, 2019, wherein this Honourable Court discharged Heritage Bank Ltd, the 15th Garnishee in this suit.
​(3) An Order making absolute and attaching the sum of Five million, nine hundred and sixty-one thousand, eight hundred and fifty-nine Naira and ninety-one kobo (N5,961,859.91) only being the remainder of the judgment sum due to the judgment creditor/Applicant and standing to the credit of the judgment debtor in its accounts with Heritage Bank LTD, the 15th Garnishee; to wit:
1) 5100133869-Abaji Project Account
2) 6003062510-0turkpo Project Account
3) 6003062527-Abakaliki Project Account
4) 6003062534-Jeba Mokwa Project Account.
5) 5100014239
6) 6003059976
(4) An Order for the sum of N1,000,000.00 (One Million Naira) only as the cost of this garnishee proceedings against the 15th Garnishee.”

The grounds upon which the Respondent predicated its application are:
“(1) Fraud vitiates all proceedings even after judgment
(2) The Court is invested with discretion to vacate its own Order or Judgment.
(3) The Court is not functus officio after discharging a party in a garnishee proceeding.”

In support of the Respondent’s application is a 15 paragraphs Affidavit deposed to by one Maureen Peter Whyte, a Litigation Clerk with the Firm of Chronos Legal & Co, Solicitors to the Respondent. Attached to the Affidavit in support of the Application is one exhibit marked Exhibit A, the Respondent’s Counsel also filed a Written Address in support of its Motion on Notice. (See pages 1- 19 of the Record of Appeal). 

The Appellant (as 15th Respondent at the lower Court) in reaction to the Motion on Notice of the Respondent and Affidavit filed on 6/02/2020, filed a Counter-Affidavit of 11 paragraphs sworn to by one Adelekan Adeleke, a Legal Practitioner with Hilltop Solicitors, Counsel to the Appellant. Attached to the Counter Affidavit are five exhibits marked Exhibits 1-5 respectively.

In support of its Counter-Affidavit, the Appellant’s Counsel filed a Written Address. (See pages 20-43 of the Record of Appeal).

In response to the Appellant’s Written Address, the Respondent on 10th June, 2020 filed a reply on Points of Law. (See pages 45- 58 of the Record of Appeal). Then the Appellant on the 25th of June, 2020 filed a Further Counter-Affidavit deposed to by one Offiong Akogu, a Legal Practitioner with Hilltop Solicitors, Counsel to the Appellant. Attached to the Further Counter Affidavit are exhibits marked Exhibits 6-16 respectively. (See pages 59-72 of the Record of Appeal).

The facts as contained in the Affidavit of the Respondent are as follows:
“(2) That I was informed by the Applicant’s Solicitor, James O. Idih of Counsel at the aforementioned address on the 6th February, 2020 at about 10 AM in the ordinary course of my duties whim I verily believed of the following facts.
(3) That on the 19th February, 2019, the Honourable Court while hearing parties for the making of a Garnishee Order Absolute, discharged the 15th Garnishee upon showing that the Judgment Debtor maintains a single account No. 172390000005 with it and that the account was in debit. The Affidavit to show cause by the 15th Garnishee is annexed herewith and marked as A.
(4) That further to paragraph 3 hereof, a Garnishee Order Absolute was granted attaching the disclosed sum of One million, nine hundred and thirty-six thousand, seven hundred and ninety-eight Naira and fifty-two Kobo (N1,935,798.52) disclosed by the other garnishee banks, leaving the sum of Five million, nine hundred and sixty-one thousand, eight hundred and fifty-nine Naira and ninety-one Kobo (N5,961,859.91) only as outstanding judgment debt.
(5) That after this Honourable Court made the order discharging the 15th garnishee on the 19th February, 2019, further to paragraph 4 hereof, the judgment creditor found out that the judgment debtor has twelve bank accounts with the 15th garnishee which the 15th garnishee failed to disclose and among them the following accounts has a total balance of over two billion naira, to wit:
a. 5100133869 -Abaji Project Account.
b. 6003062510 Oturkpo Project Account.
c. 6003062527 – Abakaliki Project Account.
d. 6003062534 – Jeba Mokwa Project Account,
e. 5100014239
f. 6003059976
(6) That it is a fact that this Honourable Court relied on the affidavit of the 15th garnishee deposed on the 5th February, 2019, to make the order discharging the 15th garnishee.
(7) That in the light of the fact and further to paragraph 5 hereof, it is expedient for the order of this Honourable Court made on the 19th February, 2019 discharging the 15th garnishee Heritage Bank LTD, be vacated.
(8) That the order of this Court made on the 19th February, 2019 discharging the 15th garnishee in the garnishee proceeding vide motion number FCT/HC/M/9441/18, was made on account of the 15th garnishee deliberate concealment and suppression of material facts in their affidavit dated the 5th February, 2019.
(9) That the 15th garnishee concealed the fact that the judgment debtor owned other accounts other than account number 172390000005 which they disclosed further to paragraph 6 hereof.
(10) That the 15th Garnishee has in its custody all material facts as to the accounts of the Judgment Debtor under its custody.
(11) That the 15th garnishee still has in its possession or custody in the accounts displayed in paragraph 6 hereof monies standing in the credit of the Judgment Debtor which can satisfy the remainder of the judgment sum including the cost of the garnishee proceeding.
(12) That the only way the Judgment can presently be satisfied in full and completely; is for the 15th Garnishees to pay the Judgment sums and cost to the Judgment Creditor/Applicant.
(13) That it will be in the interest of justice to grant this application in order to enable the Judgment Creditor to recover the outstanding judgment sum so the Applicant can truly reap the fruit of its judgment.
(14) That neither the 15th Garnishee nor the judgment debtor would not be prejudiced in any way with the grant of this application.

The Appellant on the other hand deposed to the facts at paragraphs 6 (a) – (s) wherein the Appellant avers to the effect that the Judgment Debtor (Bulletin Construction Company Limited) has been indebted to the Appellant for several years as a result of a request for credit facilities granted by the Appellant to it.

The learned trial Judge of the lower Court on the 29th day of September, 2020 held as follows:
“From the totality of the foregoing, this application succeeds and this Court orders as follows:
(1) An Order is made re-opening the garnishee proceedings against the 15th Garnishee on the grounds of fraudulent concealment of facts by the 15th Garnishee.
(2) An Order is made vacating the Order discharging the 15th Garnishee made by this Court on the 19th of February, 2019.
(3) An Order absolute is made attaching the sum of N5,961,859.91 only being the remainder of the judgment sum due to the Judgment Creditor/Applicant and standing to the credit of the Judgment debtor in its account with Heritage Bank, the 15th garnishee, to wit: 6003062527; 6003062510.
(4) The sum of N500,000.00 is ordered against the 15th Garnishee as the cost of this Garnishee Proceedings.” (See pages 96-97 of the Record of Appeal).

Dissatisfied with the decision of the lower Court, the Appellant filed two Notices of Appeal. The first Notice of Appeal was filed on 30th September, 2020 but dated the 29th day of September, 2020. The Second Notice of Appeal was filed on 13th November, 202. (See pages 98-108 of the Record of Appeal) which is the extant Notice of Appeal adopted by the Appellant in respect of the appeal. Thus, the Notice of Appeal consists of grounds A-G. The Record of Appeal was compiled and transmitted to the Court on 18th November, 2020 and a Supplementary Record of Appeal was filed on 31st January, 2022. The Appellant on 4th December, 2020 filed its Appellant’s Brief of Argument. The Reply to the Brief of Argument was filed on 14th February, 2022. The Respondent filed its Brief of Argument on 31st January, 2020 which was deemed duly filed on 2nd February, 2022.

The Respondent also filed a Notice of Preliminary Objection on 31st January, 2022.

On 28th April, 2022, the instant appeal was heard and both Counsel to the respective parties adopted their Briefs of Arguments and the appeal was reserved for judgment.

​In the Appellant’s Brief of Argument, learned Counsel submits a sole issue for determination as follows:
“Whether the lower Court was right when it ignored the unchallenged affidavit evidence before the Court and made the Garnishee Order absolute against the Appellant who is not indebted to the Judgment Debtor.”

The Respondent on the other hand also submits a sole issue for determination thus:
“Whether or not the Appellant established before the trial Court the existence of the Judgment Debtor’s indebtedness to it as would have encumbered any of the Judgment Debtor’s funds in its possession? (Distilled from Grounds A, B, C and D of the Notice of Appeal).”

APPELLANT’S BRIEF OF ARGUMENT
LONE ISSUE FOR DETERMINATION
“Whether the lower Court was right when it ignored the unchallenged affidavit evidence before the Court and made the garnishee order absolute against the Appellant who is not indebted to the Judgment Debtor.” (Distilled from grounds A, B, C and D of the Notice of Appeal)

Appellant’s counsel states that Garnishee proceedings are not novel to our legal jurisprudence in Nigeria and its legal support is in Section 83 of the Sheriffs and Civil Process Act, Laws of the Federation of Nigeria Vol. 14 CAP S6. In Fidelity Bank Plc V Okwuowulu (2013) 6 NWLR PT 1349, 197 @ 221 Para D, the Court defined a garnishee proceeding in the following words: “It is my view that there is no doubt that a garnishee proceeding is a means of collecting a monetary judgment against a judgment debtor by ordering a third party (the garnishee) to pay money otherwise owed to the judgment debtor, directly to the judgment creditor. In UBN Plc V Boney Marcus Industries Ltd & Ors 2005 13 NWLR PT 943. 654 garnishee proceeding was defined as a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which forms part of his property available in execution. It is in the hands of a third party whereby a Court order is required to direct the third party to pay directly to the judgment creditor.  In Nigerian Breweries Plc V Dumuje (2016) 8 NWLR PT 1515 536 @ 589 Para B – C, the Court defined the term as follows:
“Garnishee proceedings, otherwise known as Garnishment, is a judicial proceeding in which a creditor (or potential Creditor) asks the Court to order a third party who is indebted or a bailee for the debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts held by that third party.”

He then submits that from the above, a garnishee proceeding can only be successful, when the following coterminous features are identified: (i) A Judgment Creditor, (ii) A Judgment Debtor, and (i) A garnishee who is indebted to the Judgment Creditor or who has in its possession or custody, properties or funds belonging to the Judgment Debtor.

The determination of this appeal revolves round the interpretation and application of the third requirement itemized above. The Respondent had sued the Appellant as the 15th Garnishee in its bid to enforce a judgment obtained against Bulletine Construction Company Limited. The Appellant, at the trial Court, pleaded its non-indebtedness to the Judgment Debtor contending that the Judgment Debtor is indebted to it. The Record of Appeal shows the magnitude of the indebtedness of the Judgment Debtor, Bulletine Construction Company Ltd to the Appellant, yet the lower Court ignored all these and made the Order absolute against the Appellant. My Lords, in Zenith Bank V Kano & Ors (2016) LPELR-40335(CA) the Court held; 4-5
“In law, a Garnishee proceeding is one of the means or ways by which judgment is enforced. The Court below was thus under a legal duty to ensure that such a judgment is enforced in line with the provisions of the law governing Garnishee proceedings and to be satisfied that the Garnishee is indebted to the judgment debtor and which sum is liable to be attached in total or part satisfaction of the judgment debt due to the Garnishor. Once, it is clear to the Court, therefore, on the materials placed before it by a Garnishee, that it is not in any way indebted to the judgment debtor or rather that it is the judgment debtor that is indebted to it, that is the end of the matter as no Court is at liberty to make an order nisi absolute against a Garnishee who is not indebted to the judgment debtor or is rather a creditor also to the judgment debtor. See Wema Bank Plc. V. Brastem Sterr Nigeria Ltd. & Anor (2010) LPELR 9166 (CA). See also Sokoto State Govt. V. Kamdex mg. Ltd (2004) 9 NWLR (Pt. 878) 345: Re: Diamond Bank Ltd (2002) NWLR (Pt. 795) 120.”

He states further that the case against the appellant by the record of appeal shows that the Respondent initiated the garnishee proceeding against the appellant due to its belief that the Judgment Debtor had funds belonging to the Judgment Debtor with the bank. The Appellant responded by filing a counter-affidavit as well as a further counter-affidavit showing that the judgment Debtor was actually indebted to the bank.

​The Appellant chronicled the facts culminating into the loan given the Judgment Debtor. The Judgment Debtor applied for a loan facility on 18th May 2009. The Appellant then issued an Offer Letter of Credit Facilities on June 8 2009 followed by an Advance Payment Guarantee of N448,166,124.90 issued on behalf of Bulletine Construction Company Ltd to the Federal Ministry of Works, Housing and Urban Development. The APG is at Page 30- 31 of the Record of Appeal. The Ministry on 23 September, 2013 wrote a letter to the bank stating: rd ‘The Contract which was for a period of 18 months between 28th May, 2009 and 27th November, 2010 is yet to be completed, about 3 years after. The contractor has achieved 62.23% physical accomplishment with 264.39%-time lapse, with the Advance payment remaining unrecovered. All efforts by the ministry to cause Bulletine Construction Company Limited to repay the advance collected have failed. I am therefore directed to demand, and I hereby demand from your bank the immediate payment to this Ministry of the sum of N426,824,880.90 (Four hundred and twenty six million, Eight Hundred and Twenty Four thousand, Eight hundred and Eighty Naira, ninety Kobo) being the unrecovered Advance payment made by the Ministry to Bulletine Construction Company Limited and guaranteed by your Bank.” See page 33 of the record of Appeal. The letter partly reproduced above reveals that the bank which guaranteed the Judgment Debtor was under pressure to repay the money given the Judgment Debtor and guaranteed by the bank. Another letter written by the Ministry on 3 April, 2014 affirmed that the Judgment Debtor had not discharged its obligation and as a matter of fact, the total amount of advance had increased to N631,020,852.00 as at that date.

Learned counsel submits on behalf of the Appellant that the effect of the APG is that the Appellant is liable to pay the money guaranteed on behalf of the Judgment Debtor in the event of a default we have demonstrated convincingly that there has been a default by the Judgment Debtor, culminating into a threat by the Ministry of Works to institute an action for the recovery of the balance of the payment guaranteed. See Zenith Bank V ATO Properties Ltd (2019) LPELR-47783 (CA). (See also paragraphs 4-15, 17-18 of the further counter affidavit at page 23 of the Record of Appeal) that all these bank statements show that there have been no transactions on the bank accounts and that the judgment debtor is greatly indebted to the bank. That the indebtedness of the judgment debtor, Bulletine Construction Co. Ltd was responsible for the conclusion that the judgment debtor did not have money with the bank and not any deliberate attempt to mislead the bank.

Appellant’s Counsel submits that the order nisi presupposes that the garnishee is indebted to the judgment debtor as at the time the order was made. If according to the records of the garnishee which is largely undisputed, there was an indebtedness on the part of the judgment debtor, then I do not see how the Court can in equity and law force a bank in essence to pay its own money to satisfy a judgment incurred by a customer. After all an order nisi only creates an equitable charge over the funds in favour of the judgment creditor. This is notwithstanding the fact that as at the time the order nisi was made, there had been no formal set Off by the garnishee of the judgment debtors accounts. It is my view that the right of set off can be exercised after receipt of the order nisi so long as the garnishee records show that as at the date of the order nisi, there were two accounts that could be consolidated belonging to the creditor one with credit balance and another with debit balance. These sums in different accounts owned by a customer may be considered as the same for the purpose of settling liability due from the customer to the banker and vice versa. In my view that is the only resolution which meets the justice of such a situation. In the circumstances, I have to hold that as at the time the order nisi was made, the respondent was indebted to the garnishee and therefore the garnishee could not have rendered up any assets of the debtor. Therefore the order absolute was erroneously made.

Clearly, it will be manifestly unjust to direct the bank who is not indebted to the Judgment Debtor to pay the debt of the Judgment Debtor.

In conclusion, learned counsel to the Appellant urged the Court to allow the appeal.

PRELIMINARY OBJECTION OF RESPONDENTS:
ISSUE FOR DETERMINATION OF THE OBJECTION.
“Whether or not, having regard to the unilateral amendment of the names of the parties to the appeal other than the names before the trial Court, there is a valid Notice of Appeal, Record of Appeal and Appellant Brief of Argument as to engage the jurisdiction of this Honourable Court?

The parties to the Garnishee proceeding before the trial Court whereon ruling was delivered on the 29th September, 2020 and which ruling forms the bedrock of this appeal. (See page 79 of the Record of Appeal)

The Respondent’s counsel submits that the trial Court at no time granted an amendment for alteration of the parties and neither has the Court of Appeal countenanced any such application but curiously, the Appellant’s two Notices of Appeal dated 29 September, 2020 but filed on the 30th September, 2020 and the other dated 12th November but filed on 13th November, 2020 has only two parties to the appeal, the Appellant and the Respondent (pages 98 and 103 of the Record of Appeal), to wit
HERITAGE BANK PLC – APPELLANT
AND
C.G.C. NIGERIA LIMITED – RESPONDENT

He submits that party cannot unilaterally alter the parties to an appeal other than what was before a trial Court without the leave of Court. In Re-Apeh (2017) 11 NWLR (Pt.1576) 252.

He argues that unilateral alteration of the parties to an appeal renders the appeal incompetent as it oust the jurisdiction of the appellate Court to entertain the appeal. He cited and relies on the cases of Adeniran Olusokun (2019) 8 NWLR (Pt.1673) 98 at 117.

Also in P.P.A v I.N.E.C (2012) 13 NWLR (Pt. 1317) 215 at 1 237, learned counsel contends that contrary to posture of the Appellant, an appeal is a continuation of the case from the trial Court and as such the parties on appeal must be the parties before the trial Court. In Nwaogu v Atuma (2013) 11 NWLR (Pt.1364) 117) at 158.

He submits that the Notice of Appeal is the originating process (or an appeal and where there is no valid Notice of Appeal before the Court, the Court would lack the jurisdiction to entertain the appeal. See S.P.D.C.N. v Ekosi (2016) 2 NWLR (Pt 1496) 278 at 288.

Respondent’s counsel posits that once the Notice of Appeal is defective, the Court will lack the jurisdiction to entertain the appeal and in this current situation, the appeal is not properly constituted with respect to parties on the notice of appeal and it is a fundamental defect that affects the root of the appeal and oust the jurisdiction of the Court. In Iwunze v F.R.N. (2016) NWLR (Pt.1404) 580 at 596 in conclusion I urge the Court to discuss the appeal.

ARGUMENT OF THE RESPONDENT
“Whether or not the Appellant established before the trial Court the existence of the Judgment Debtor’s indebtedness to it as would have encumbered any of the Judgment Debtor’s lands in its possession? (Distilled from Grounds A, B, C and D of the Notice of Appeal)

Learned counsel to the Respondent submits that the Appellant as the 15th Garnishee before the trial Count filed three different affidavits to show cause. The first was sworn on the 5th February, 2019 wherein it disclosed that the Judgment Debtor (Bulletine Construction Company Limited) maintained only one account and it was in deficit and whereon, it was discharged from the garnishee proceeding. (Pages 28-30 of the Supplementary Record of Appeal)

He contends that at the instance of the Respondent’s application to re-open the garnishee proceeding on the basis of suppression of evidence, the Appellant sworn to a Counter-Affidavit on the 16th March, 2020 wherein it asserted that the Judgment Debtor was indebted to it as a result of an Advance Payment Guarantee issued on its behalf and thus, it has a lien on the Judgment Debtor’s fund in its possession. (Pages 20-44 of the Record of Appeal)

He submits that on the 25th June, 2020 it filed a Further Affidavit wherein it admitted that the Judgment Debtor maintained eleven accounts with it. That some of the accounts had credit balances while all the others were in deficits. That the deficits outweighed the credit balances and thus, we Judgment Debtor has no money with it as would have satisfied the Garnishee Order Nisi. (Pages 59-73 of the Record of Appeal).

Learned counsel argues that the Appellant repeatedly attempted to mislead the trial Court as to the credit/debit standing between the Appellant and Judgment Debtor and which informed the Court findings at Pages 92 to 93 of the Record of Appeal.

That act of concealment cannot be anything but fraudulent.

He submits that the Appellant repeatedly attempted and did suppressed evidence before the trial Court even while raising the assertion of the existence of a lien as a result of the Judgment Debtor’s indebtedness to it. Suppression of evidence is fraud. See Umanah v Attah & Ors (2006) LPELR-3356(SC) and Vulcan Gases Ltd. v. G.F. Ind. A-G (2001) 9 NWLR (Pt.719) 610 at 624. The continued contention of the Appellant and which is extensively argued in the Appellant’s brief is that the Judgment Debtor is indebted to the Appellant but they wholly failed to prove this before the trial Court within the context recognized and acceptable.

The Appellant at paragraph 6(b) of its Counter-Affidavit averred that the Judgment Debtor was indebted to it in the sum of seven billion and five hundred million naira and in substantiation, it exhibited the Judgment Debtor Application for Credit Facilities of 18th May, 2009 requesting for Advance Payment Guarantee, Term loan, Equipment lease and overdraft and which was granted by the then Spring Bank on the 8th June, 2009 with different condition for each. (Pages 20-44 of the Record of Appeal).

In an attempt to show the states of indebtedness, the learned counsel to the Respondent submits that the Appellant exhibited the assumed last pages of various statement of accounts and some were labeled, thus:
a. Bulletine construction Company Limited (Abakaliki Project)
b. Bulletine construction Company Ltd (Jebba/Mokwa Project)
c. Bulletine construction Company Ltd (Otukpo Project)
d. Bulletine construction Company Ltd (Abaji Project)
e. Bulletine construction Company Ltd (AMCON Overdrafts)
f. Bulletine construction Company Ltd (5 AMCON Loans)
g. (Pages 62-72 of the Record of Appeal).

It is worthy of note further to that account No. 6003059976 is AMCON Overdrafts while 172390000002, 172390000003, 172390000004, 172390000005 and 172390000006 are AMCON Loans. These accounts are all in deficits.

He then invites the Court to take judicial notice of the fact that the Asset Management Corporation of Nigeria (AMCON) established pursuance of the AMCON Act (as amended) as a special purpose agency to buy off debts from re-affected financial institution and thus, the debts cannot be claimed by the said financial institution as in this case, the Appellant. In essence, it was established to save the banks from the loads of bad debts. See AMCON v. CANVASS FARMS (NIG) LTD & ORS (2021) LPELR-54651(CA).

He submits that it would be safe to draw the inference that the Appellant had transferred the Judgment Debtor liabilities to AMCON but chooses to conceal it in order to defeat the justice of the Garnishee Order Nisi. The issue of concealment of transfer of debt to AMCON was an issue in UNITY BANK v. AHMED (2019) LPELR-47395(SC):
“The nature of the contractual relationship between that Appellant and Respondent is banking. Banking procedure and loan transaction and/or documentations are part of the most formal, and the most regulated aspects in banking. Thus, the law is fairly certain that any disagreement between own right” may only mean that he has both accounts name or in the same name, character or capacity and neither account is a trust account. See British and French Bank Ltd v. Opaleye supra.

The right to combine account does not exist where the accounts are not held in the same right, as where one is a trust account and the other personal account. See Re Gross, ex parte Kingston (171 Ch. App. 632 Union Bank of Australia Ltd. v. Murray Ayer (1898) A-C. 693 P.C.; Bank of New South Wales v Goulburn Valley Butter Co. Proprietary Ltd. (1902) A.C. 543 PC.” Per ANTHONY IKECHUKWU IGUH, JSC (PP 28 – 35 Paras – F)

He submits that the Appellant also failed to adduce evidence in the Court below as to the differences in the account as a loan account cannot be consolidated with a current account. See ALLIED BANK OF NIGERIA LTD v. AKUBUEZE (1997) LPELR-429(SC).

Respondent’s counsel submits that it is trite that a banker cannot exercise a right of consolidation of accounts where the accounts are held in different capacity for the purpose of exercising lien on the balance in the accounts. See ALLIED BANK OF NIGERIA LTD v AKUBUEZE (1997) LPELR-429(SC).

He contends if the Appellant had a lien on the credit balances of the Judgment Debtor why were the sums not blocked but allowed to stand as credits in favour of the Judgment Debtor. The trial Court was therefore right when he stated that; “The account numbers 6003062522, 6003063510, 5100133868 and 5100014239 as now disclosed by the 15th Garnishee all belong to the Judgment Debtor and the credit balances therein, from the above definition, are records of payments made into these accounts. They are not debts or debits but monies belonging to the account holder (Pages 93 of the Record of Appeal. He observed further at Pages 96 of the Record of Appeal that:-
“Furthermore, the fact that the various sums disclosed in the above accounts are still standing to the credit of the Judgment Debtor, means that the monies are still available to the Judgment Debtor to use as it pleases. If the monies belong to Heritage Bank, which is the same as Heritage Bank Plc or Heritage Bank Ltd the 15 Garnishee as against the Judgment Debtor they will not be recorded as ‘credit’. They are credit because they belong to the Judgment Debtor and they are at its disposal. the fact that some accounts of the Judgment Debtor with the 15th Garnishee are in credit, shows that not all the accounts of the Judgment Debtor with the 15th Garnishee have a lien placed on them as there is no evidence to the contrary.”

In conclusion, learned counsel to the Respondent urged me to dismissed the appeal and affirm the judgment of the trial Court.

RESOLUTION OF ISSUES IN THE APPEAL
The Appellant in its brief of argument formulated a sole issue for determination of this appeal. The issue is:-
“Whether the lower Court was right when it ignored the unchallenged affidavit evidence before the Court and made the garnishee Order absolute against to the Appellant who is not indebted to the judgment Debtor, (Distilled from Grounds A, B, C and D of the notice of Appeal).

The Respondent on the other hand, distilled the following issue for determination thus:-
“Whether or not the Appellant established before the trial Court the existence of the judgment Debtor’s indebtedness to it as would have encumbered any of the judgment Debtor’s funds in its possession? (Distilled from Grounds A, B, C and D of the Notice of Appeal).”

The Respondent also filed a Notice of preliminary Objection challenging the competence of the Appellant’s Notice of Appeal wherein he formulated the following issue for the determination of the preliminary objection:
“whether or not, having regard to the unilateral amendment of the names of the parties to the Appeal other than the names before the trial Court, there is a valid Notice of Appeal, Record of Appeal and Appellant’s Brief of Argument as to engage the jurisdiction of this Hon. Court?”

To therefore determine this appeal, I will and I hereby adopt the sole issue formulated by the Appellant’s counsel in its brief of arguments and I will invariably, consider the Respondent’s issue thereunder as well. I will however proceed to consider the Respondent’s preliminary objection first and if it succeeds, that is the end of this appeal and if it fails I will then proceed to determine the sole issue on the main appeal.

PRELIMINARY OBJECTION
The Respondent’s Counsel argues at paragraph 3.3 (ii) – 3.3 (ix) of its brief of argument to the effect that the trial Court nor this Court never granted an amendment to alter the parties but curiously the Appellant by its two Notices of Appeal variously filed on 30/09/2020 and 13/11/2020 has only two parties as against the parties on record as shown at pages 98 and 103 of the Record of Appeal that forms the basis of the Ruling of the trial Court now on appeal. He cited plethora of judicial authorities to support his contention.

From the records on appeal, it appears the Respondent did not avert its mind to the supplementary Record of Appeal transmitted on 31/01/2022 and deemed duly compiled and transmitted on the 02/02/2022. At page 13 of the supplementary record of appeal, the judgment in which the respondent initiated to be enforced by Garnishee proceedings, the parties therein were:
Between:
CGC NIGERIA LTD – PLAINTIFF
AND
BULLETINE CONSTRUCTION CO. LTD – DEFENDANT.

In otherwords, the judgment that gave rise to the Garnishee proceedings does not include the Appellant either as a plaintiff or a defendant. Thus, Garnishee proceedings are sui generis and as rightly submitted by the Appellant’s counsel, parties to a garnishee proceeding are the judgment creditor and the Garnishee. In CBN V INTERSTELLA COMM LIMITED, (2018) 7 NWLR (pt 1618) 294 AT 393 and MUCAS HOSPITAL LTD V FASUYI, (2004) 8 NWLR (pt 874) 67, AUTO-IMPORT V J.A.A. ADEBAYO & ORS, (2005) 19 NWLR (pt 959) 44 at 126, AFRICAN INSURANCE DEVELOPMENT CORP V NIGERIA LIQUEFIED NATURAL GAS LTD, (2000) 4 NWLR (pt 653) 494 at 505-506 and NDULUE V IBEZIM, (2002)12 NWLR (pt 780)137 at 165 held to the effect that by virtue of the Judgments (Enforcement) Rules LFN that:-
“where a person not being a party in a proceeding obtains an Order or has an order made in his favour, he shall be entitled to enforce obedience to such Order by the same process as if he were a party in the proceeding, and any person not being a party in a proceeding against whom obedience to any judgment may be enforced, shall be liable to the same process for enforcing obedience to such judgment as if he were a party to the proceeding.”
In this case, the Respondent had obtained judgment against the Judgment debtor whose funds were in the custody of the Appellant, the Garnishee, the Respondent can proceed to enforce the judgment against it without necessary making the judgment debtor a party. Thus, the Originating process i.e. exparte motion commencing the garnishee proceeding can be seen at pages 1 – 12 (of the supplementary record which was later struck out on 05/02/2020). Then by the proceedings of 17/03/2020, page 74 of the Record of Appeal, the Respondent’s counsel at the trial Court submitted thus:-
“We filed a motion seeking the Court’s indulgence to re-open the garnishee proceedings against the 15th garnishee on the ground of fraud by concealing the accounts of the judgment debtor.”
Then the Respondent’s counsel i.e the 15th garnishee stated on record at page 75 as follows:-
“I admit that the earlier affidavit to show cause failed to disclose the actual amount in the account of the judgment debtor. It was the fault of the bank and I apologize.”
On 29/09/2020, the trial Court in its ruling held at pages 96 – 97 reopening the proceedings against the 15th garnishee on the grounds of fraud & concealment and vacating the order discharging the 15th garnishee made on 19/02/2019. Thus, by the Record on Appeal, the decision of the trial Court was essentially between the Judgment Creditor/Respondent and the 15th garnishee/Appellant. And as held in INTERTELLLA COMMS LTD (supra), the Supreme Court held that:-“A Garnishee proceeding is strictly between the judgment creditor and the garnishee who is indebted to the judgment debtor.”

Thus, garnishee proceedings as I said earlier being sui generis, the instant objection of the Respondent is not in all fours with the facts and circumstances revealed by the Record of Appeal.

The Notice of preliminary objection filed by the Respondent therefore has no merit and it is accordingly dismissed.

RESOLUTION OF ISSUE OF THE MAIN APPEAL
The Appellant at paragraph 4.3 and 4.4 of its Appellant’s brief of argument submits in effect that the determination of this appeal revolves round the interpretation and application of the third requirement, that is, a garnishee who is indebted to the judgment Creditor or who has in its possession or custody properties or funds belonging to the judgment Debtor.

Now by the Affidavit of the Respondent deposed to on 06/02/2020, at paragraph 5, the Respondent deposed to facts that the Appellant have twelve bank accounts with the Appellant which the Appellant refused, failed or neglected to disclosed consequent upon which it was discharged on 19/02/2019. (See page 5 of the Record of Appeal). The Respondent at page 59 of the Record of Appeal filed a further affidavit wherein at paragraph 5, the Appellant deposed as follows:-
“That even though some of the accounts maintained in the bank by the Judgment debtor are funded, the money does not belong to the judgment Debtor as it is used to set off the indebtedness of the N1,272,700,382.21.”

Further to paragraph 5 of the further Affidavit of the Appellant, it deposes at paragraphs 7, 9, 15 and 16 that these accounts of the Judgment Debtor maintained with the Appellant are funded though no transaction on the accounts. The Appellant also avers at paragraphs 6, 8, 10, 11, 12, 13 and 14 to the effect that the Judgment Debtor is indebted to the Appellant. Thus, by the deposition of the Appellant in its paragraph 7, 9, 15, and 16, the accounts of the Judgment Debtor with the Appellant has a total sum of over N200,000,000.00 which was not disclosed by the Appellant in its Affidavit to show cause. Further, averments of the Appellant to the effect that it has a lien over the funds in the judgment Debtor’s account by reason of credit facilities advanced to the judgment Debtor, I completely agree with the trial Court that it was an afterthought.

The Chambers Twentieth Century Dictionary at page 22 defined “after thought” as follows:-
“A thought or thing thought of after the occasion; a later thought or reflection or modification.” See LAWAL V STATE, (2010) LPELR 4622(CA)
In the case of AGBO v STATE (2006) LPELR 242, the Supreme Court of Nigeria, as per EJIWUNMI, JSC held:-
“Aforethought therefore, does not necessarily imply premeditation, but it implies intention which must necessarily precede the act intended.”

This Court also held in the case of PDP & ANOR V AMINU & ANOR, (2019) LPELR 47330 as follows:-
“On the second issue nominated for the determination of this appeal dealing with the Appellant’s allegation of denial of fair hearing, the short and straight forward decision of this Court is that the said allegation is nothing but an afterthought. Here is a situation in which the Appellant by his own showing appeared and participated in the proceedings and did not raise the issues of fair hearing, asked the Court below for an adjournment which the Court freely granted and did not raise the issue of fair-hearing throughout. A party is not allowed to approbate and reprobate in the handing of their matter. It is the same thing as blowing hot and cold. See INTERCONTINENTAL BANK LTD V BRIFINA LTD, (2012)13 NWLR PAGE 1 at 22. In the case of LUKE OKORO & ORS V HILARY EGBUOH & ORS, (2006) LPELR 2491 SC per TOBI, JSC had this to say on the subject: An appellate Court will be guided by the principle of law that a party is bound to make the same case both at the trial Court and the Court of Appeal. An appellate Court will not encourage, or better, allow a party make a case at the trial Court and then take or make a somersault on appeal. That will tantamount to blowing hot and cold with the same breath; a conduct which equity with its hands of fairness and fair play, will not allow.”

Now in the instant case before the trial Court now on appeal, by the Affidavit of the Appellant deposed to on 5/02/2019, the Appellant deposed as follows:-
(3) That Heritage Bank was served with a Garnishee Order Nisi issued by this Honourable Court on the above captioned suit.
(5) That I was informed by Omolola Owopelu, legal officer of the legal services Department, Heritage Bank Plc, 292 B Ajose Adeogun Street, Victoria Island Lagos at my above stated address on 24/01/2019 at about 6.04pm of the following facts and I verily believe same to be true.
(a) That upon service of the said Garnishee Order Nisi, Heritage Bank conducted a comprehensive search into the account
(b) That the search I hereby confirm that judgment Debtor maintains an account with the Bank with account number 17239000005 with debit balance of N92,533,415.64, the statement of account is marked Exhibit A.”

Then the Appellant still deposed to a Counter-Affidavit against the Respondent’s motion on Notice filed on 6th February, 2020 asserting that the Judgment Debtor is indebted to it on credit facilities advanced to it and secured by lien on APG proceeds. Thus, when the Respondent supplied information on the accounts of the Judgment Debtor, the Appellant now owed up by deposing to a further Affidavit disclosing at paragraphs 5, 7, 9, 15 and 16 the funded accounts of the Judgment Debtor over the tune of N200,000,000.00 credit balance. The attitude of the Appellant by approbating and reprobating or blowing hot and cold, equity frowns on this attitude and hence, equity cannot assist a party with unclean hands. Infact, this Court has re-stated its position in the case of OCEANIC BANK PLC V OLADEPO & ANOR, (2012) LPELR 19670 as follows:-
“it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment Debtor of course, by playing games of hide and seek with the Court, by failing or refusing to depose affidavit to show cause, disclosing the true account status of the judgment debtor, the garnishee only exposes itself to trouble, daring the Court to do its worse, it can therefore be made to pay the debit of the judgment, if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody.
In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt. Therefore, while alleging that the Judgment Debtor does not have sufficient money in his account with the Garnishee to satisfy the judgment debt, the Garnishee has a duty to disclose the true status of the account of the judgment debtor, by exhibiting the account statement of the judgment debtor as at the relevant date indicated on the Garnishee Order Nisi. This is to enable the trial Court to form an independent opinion as to the ability of the Garnishee to satisfy the judgment debt, either in full or in part. Failure to disclose account detail of a judgment debtor by a Garnishee readily raises a presumption that the Garnishee has something to hide and that may be presumed against the Garnishee, under Section 167 (d) of the Evidence Act, 2011.”

The trial Court after a pains-taking perusal and review of the Affidavit evidence of the Appellant and the Respondent rightly held as follows:-
“The further counter-affidavit filed by the 15th Garnishee in opposition to this application, has rather given credence to the allegation by the judgment Creditor/Applicant. Whereas in the Affidavit to show cause, the 15th Garnishee averred that the Judgment Debtor maintains just an account with debit balance of N92,533,415.64, the same 15th Garnishee has now in the further counter affidavit disclosed other accounts belonging to the Judgment Debtor which have an aggregate of over N200 million to the credit of the Judgment Debtor.
The question that will easily agitate any mind is why did the 15th Garnishee conceal these other accounts belonging to the Judgment Debtor after it had conducted a comprehensive search into its record? There can only be one reason: that disclosing these other accounts would be unfavourable to it.
The 15th Garnishee stated this much in paragraph 18 of its further Counter-Affidavit, where it averred thus:
“That the indebtedness of the Judgment Debtor, Bulletine Construction Co. Ltd was responsible for the conclusion that the Judgment Debtor did not have money with the Bank and not any deliberate attempt to mislead the Court.”
So, it is not that the 15th Garnishee was not aware of those accounts with credit balance in them when filing its affidavit to show cause; after all, it conducted a comprehensive search. But the 15th Garnishee deliberately concealed those accounts from this Court so that the funds therein will be available to it to service the Judgment Debtor’s indebtedness to it whenever it pleases.
That act of concealment cannot be anything but fraudulent. I therefore agree with the Judgment Creditor/Applicant that the discharge order obtained by the 15th Garnishee from this Court on the 19th day of February, 2020 was obtained by fraud through concealment of facts. This circumstance is therefore, such in which the Court is empowered to revisit its order or judgment with a view to setting same aside.”
(See second paragraph of page 2 – first paragraph of page 93 of the Record of Appeal).

The trial Court further proceeded at pages 96-97 of the Record of Appeal and granted the reliefs sought by the Respondent.

The evaluation of Affidavit evidence of parties by the trial Court and its finding is not perverse or manifestly unjust as submitted by the Appellant. The Appellant failed to show how the decision of the trial Court is perverse or manifestly unjust. Thus, the sole issue for determination is hereby resolved against the Appellant and in favour of the Respondent. This appeal lacks merit and it is accordingly dismissed.

The decision of the High Court of the Federal Capital Territory in Suit No. FCT/HC/M/50092/2020 delivered on 29th September, 2020 by O.A OTALUKA, J is hereby affirmed.

A cost of N300,000.00 is hereby awarded against the Appellant and in favour of the Respondent.

HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by Danlami Zama Senchi, JCA.

It is my view in agreement with the finding with my learned brother that the Preliminary Objection has no merit. It is accordingly dismissed. On the main appeal, I also agree that the evaluation of the evidence by the learned trial Judge is not perverse. The appeal therefore lacks merit. It is accordingly dismissed. I abide by the consequential order made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, Danlami Zama Senchi, JCA. I am in agreement with the reasoning and conclusion reached therein.

I therefore also find the appeal lacking in merit and it is hereby dismissed. I affirm the decision of the High Court of the Federal Capital Territory in Suit No. FCT/HC/M/50092/2020 delivered on 29th September, 2020 by O. A. Otaluka, J.

I make no order as to costs.

Appearances:

Akinyemi Aremu, Esq. For Appellant(s)

James O. Idih. For Respondent(s)