STERLING BANK PLC v. SAMAILA AHMADU GUMAU & ORS
(2019)LCN/12850(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of March, 2019
CA/J/297/2016
RATIO
COURT AND PROCEDURE: GARNISHEE PROCEEDINGS
“…garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed strictly by the provisions of the Sheriffs and Civil Process Act United Bank for Africa Plc Vs Ubokulo (2009) LPELR 8923 (CA), Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801 (CA). Thus, resolution of this appeal will turn largely on the issue of whether the steps taken by lower Court in the conduct of the garnishee proceedings before it were in accord with the provisions of the Sheriffs and Civil Process Act.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: JUDICIAL DISCRETION
“A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt. 1109) 1, Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. In General and Aviation Services Ltd Vs Thahal (2004) 10 NWLR (Pt 880) 50, Uwaifo, JSC stated that:
It is a rule of equity that where the exercise of discretion plays a part, it is expected that the Court will act in conformity with the ordinary principles upon which judicial discretion is exercised otherwise an appellate Court will interfere with the discretion. There is always the need for a Court exercising discretion to give reasons in justification of the exercise. There can hardly be any justifiable reasons for exercising discretion upon imprecise facts. It is the nature and strength of facts available to the Court that provide the tonic for the proper exercise of discretion.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
STERLING BANK PLC Appellant(s)
AND
1. SAMAILA AHMADU GUMAU
2. ISAH ABDULKAREEM
(Suing for themselves and as representatives of 323 Councilors from all 20 Local Government Councils of Bauchi State who served from the period of 2008-2011)
3. BAUCHI STATE GOVERNMENT Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the interlocutory Ruling of the National Industrial Court sitting in Jos, Plateau State delivered by Honorable Justice R. H. Gwandu in Suit No NICN/JOS/5/2013 on the 2nd of June, 2016.
The first and second Respondents apparently obtained judgment against the third Respondent in a sum amounting to N937,522,216.60 and thereafter commenced garnishee proceedings before the lower Court against nineteen banks, including the Appellant who was the twelfth garnishee. The lower Court made an order of garnishee nisi on the 9th of May, 2016 directing all the garnishee banks, including the Appellant, to set aside the said sum of N937,522,216.60 from the monies of the third Respondent in their possession and to show cause why the money should not be paid over to the first and second Respondents. The Appellant was served with the garnishee order nisi and it caused an affidavit to show cause to be deposed on its behalf on the 2nd of June, 2016 wherein it deposed that their records showed that the third Respondent did not maintain an account with it and sought that it be discharged.
The first and second Respondents did not depose to any further affidavit to counter the depositions of the Appellant.
At the proceedings on the hearing of the application to make the garnishee order absolute, Counsel to the Appellant referred the lower Court to the affidavit to show cause and prayed that the Appellant be discharged accordingly. Counsel to the first and second Respondents countered and prayed the lower Court to summon Mrs. Mary Akoh, the Head of Operations of the Appellant to attend Court to explain why she did not disclose in full the state of the account of the Appellant and show cause why contempt proceedings should not be made against her. In the Ruling delivered on the garnishee proceedings, the lower Court stated as regards the Appellant thus:
I have looked at the affidavit to show cause filed by the 12th Garnishee (Sterling Bank Plc), the Court is not satisfied because the 12th Garnishee did not disclose fully the state of the account. I hereby summon the Regional Head of Operations, North (Mrs. Akoh) to come at the next adjourned date with account record keeping books and account data base to show cause properly.
The Appellant was dissatisfied with this Ruling and, sequel to this Court granting it the trinity prayers of extension of time within which to seek leave to appeal, leave to appeal and extension of time within which to appeal on the 28th of September, 2016, it caused its Counsel to file a notice of appeal dated the 13th of October, 2016 and containing three grounds of appeal against it. The notice was amended and further amended with the leave of this Court and the Appellant filed a further amended notice of appeal dated the 21st of June, 2018 on the 22nd of June, 2018.
In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments on the 22nd of June, 2018. Counsel to the first and second Respondents filed a brief of arguments dated the 12th of July, 2018 on the 16th of July, 2018 in response and the brief of arguments incorporated a preliminary objection challenging the competence of the grounds of appeal of the Appellant. Counsel to the Appellant filed a Reply brief of arguments dated the 21st of January, 2019 on the 22nd of January, 2019 and the Reply brief of arguments was deemed properly filed and served by this Court on the 23rd of January, 2019. Counsel represented the third Respondent and he informed the Court that they were not contesting the appeal. At the hearing of the appeal, Counsel to the parties argued the preliminary objection of the first and second Respondents on the basis of the written arguments contained in their respective briefs of arguments thereon and thereafter adopted the arguments in the briefs of arguments on the substantive appeal.
In their notice of preliminary objection, the first and second Respondents predicated their challenge to the grounds of appeal of the Appellant on two grounds; namely (i) that the three grounds of appeal are duplicitous, repetitive, vague and amount to a proliferation of grounds of appeal; and (ii) that the three grounds of appeal were grounds of mixed law and fact requiring leave to appeal. Without laboring through the prolix arguments contained in the respective briefs of arguments of the parties, this Court must say that the preliminary objection of the first and second Respondents is totally misconceived. Firstly, as stated above, the Appellant sought for and obtained the leave of this Court to appeal against the interlocutory Ruling of the lower Court and thus the fact that the grounds of appeal contained grounds of mixed law and fact is of no moment.
The drawn up of this Court on the leave granted to the Appellant to appeal shows on its face that Counsel to the first and second Respondents participated in the proceedings leading to the granting of the trinity prayers for extension of time to apply for leave to appeal, leave to appeal and extension of time to appeal. It is thus rather strange that it is the same Counsel that filed a preliminary objection to the competence of the appeal on the ground that the Appellant did not obtain leave to appeal before filing the appeal. Counsel to the first and second Respondents could only have done this for one reason; to mislead and confuse the Court. This is a reprehensible misconduct that should not be condoned in any manner. In Momodu Vs Momoh (1991) 2 LRCN 437, the Supreme Court held that ?It is a very serious matter and indeed sad for counsel whose bounden and inescapable duty is to assist the Court to appear to be intent in misleading the Court.
This attitude of counsel which is unethical and reprehensible calls for condemnation by the Court in no uncertain terms.? Similarly, in Okonji Vs Onwusanya (2012) LPELR 9286 (CA) Shoremi, JCA commented that, A legal practitioner is a minister in the temple of justice. His first duty therefore is to act in the interest and promotion of justice. This is what sustains his profession and makes it honorable. A counsel must not knowingly mislead the Court against the course of justice. This may lead to punishment by judicial process as a crime. It is hoped that Counsel to the first and second Respondents will desist from such conduct in future.
Secondly, it is correct that by the provisions of Order 7 Rule 2(3) of the Court of Appeal Rules 2016, grounds of appeal are expected to be concise, precise and distinct and must not contain legal arguments, be unnecessarily lengthy, elaborate or contain narratives and must deal with the real complaint upon which the ground is predicated Guda Vs Kitta (1999) 12 NWLR (Pt. 629) 21, Coker Vs United Bank for Africa Plc (1997) 2 NWR (Pt 490) 641, Okudo Vs Inspector General of Police (1998) 1 NWLR (Pt. 533) 335, Nwabueze Vs Nwora (2005) 8 NWLR (Pt 926) 1, Adekanye Vs Grand Services Ltd (2007) All FWLR (Pt 387) 855. It is also correct that the complaints of the Appellant in the first and second grounds of appeal are repetitive and that the particulars in support of the two grounds of appeal contain legal arguments and are unnecessary lengthy.
The law, however, is that these imperfections are not sufficient reasons, in the circumstances, to deny the Appellant their right of appeal. A read through the grounds of appeal shows that the grouse or the complaint of the Appellant with the interlocutory Ruling of the lower Court appealed against is identifiable and can be reasonably elicited. The complaint is not beclouded or confusing and it was not the case of the first and second Respondents that they were misled as to the complaint and/or that they were in the dark as to what they are expected to defend in the appeal. It is trite that in such circumstances the grounds of appeal will not be declared incompetent and struck out, notwithstanding that they are repetitive, argumentative and unnecessarily prolix. Thor Ltd Vs First City Merchant Bank Ltd (1997) NWLR (Pt 479) 35, Central Bank of Nigeria Vs Okojie (2002) 8 NWLR (Pt 768) 48, Garuba Vs Kwara Investment Co., Ltd (2005) 1 SCNJ 290, Omisore Vs Aregbesola (2015) LPELR 24803 (SC), Awusa Vs Nigerian Army (2018) LPELR 44377(SC).
The notice of preliminary objection of the first and second Respondents is totally misconceived, completely baseless and thoughtless. It has become a penchant for Counsel to file preliminary objection in every appeal, even where simple common sense dictates that there is no ground for it. It is true that a Court has a duty to hear and determine all applications filed by parties, but Counsel must understand that this is not a licence to file spurious, frivolous and vexatious applications that achieve no other goal except wasting the scarce judicial time of the Court; time that could have been better utilized to deal with more serious matters. It is a sign of desperation and bad advocacy and it does not help the cause of a party because it gives the Court the impression, very early on, that the Counsel does not know what he is doing and it might compromise the merit of an otherwise good response to the substantive appeal. The notice of preliminary objection of the first and second Respondents is an epitome of improper use of the process of preliminary objection. It is a waste of the time of this Court. It fails in its entirety and it is hereby dismissed.
In arguing the substantive appeal, Counsel to the Appellant distilled two issues for determination in the appeal and these are:
i. Whether the Appellant’s right to fair trial (hearing) was not breached by the procedure the lower Court adopted in believing and acting upon the oral submissions of Counsel to the first and second Respondents over the affidavit evidence of the Appellant which stood unchallenged.
ii. Whether the Appellant’s right to fair hearing/trial was not breached when the lower Court made an order compelling the Appellant to do the impossible.
In arguing the first issue for determination, Counsel to the Appellant stated that the doctrine of fair hearing is both substantive and procedural and that on the substantive level, it postulates that a party must be afforded the opportunity to be heard, and on the procedural level, it demands that a trial must be fair, from the commencement and through all the steps taken throughout the case to the conclusion. Counsel stated that it is possible for a party to be afforded the opportunity to be heard and yet suffer a breach of his right to fair hearing by the procedure adopted by a trial Court or by the non-observance of certain laws and regulations and which lead to injustice and he referred to the case of Governing Board Rugipoly Vs Ola (2016) 16 NWLR (Pt 1537) 1. Counsel stated that in procedural fair hearing due process requires that all the rules of practice and procedure and all rules of evidence laid down by law to ensure fair hearing and the attainment of justice are observed, upheld and applied and that justice must not just be done, it must manifestly be seen to be done.
Counsel referred to the proceedings that took place before the lower Court and stated that the deposition in the affidavit to show cause of the Appellant that the third Respondent did not maintain an account with it was not challenged or met by any contrary deposition by the first and second Respondents and that the implication of this is that the deposition was deemed admitted by the Respondents and he referred to the case of National Hospital, Abuja Vs Nat. Comm. C.O.E (2014) NWLR (Pt 1418) 309. Counsel stated that this was sufficient reason for the lower Court to have discharged the Appellant, but that, rather than do so, the lower Court relied on the oral submission of the Counsel to the first and second Respondents to make a finding that the Appellant did not fully disclose the state of the account of the third Respondent and it consequently ordered the Head of Operations of the Appellant to attend Court to show cause properly.
Counsel stated that the finding of the lower Court and the consequential made thereon were based on conjectures and assumptions and that this breached the Appellant?s right to far hearing and caused a miscarriage of justice because a Court of law is enjoined to act and make findings only on the basis of evidence led by parties and not on strength of the oral submissions of Counsel and he referred to the case of Bakare Vs Bakare (2012) 16 NWLR (Pt 1325) 29. Counsel referred to the case of CBN Vs Auto Export (2013) 2 NWLR (Pt 1337) 80 in asserting the requirement of the observance of due process in garnishee proceedings and stated that the failure of the lower
Court to follow the established rules of evaluation of evidence in making its finding culminated in a breach of the Appellant’s right to fair hearing. Counsel urged the Court to resolve the first issue for determination in favor of the Appellant.
On the second issue for determination, Counsel repeated his arguments on the first issue for determination and stated that in the face of the affidavit evidence before the lower Court, the order made that the Regional Head of Operations, North (Mrs. Akoh) should attend Court with account record keeping books and account data base to show cause properly was an impossible order for the Appellant to comply with as there was evidence of the existence of any account of the third Respondent in the Appellant?s books and it was bound to cause injustice and it should be set aside and he referred to the case of Geosite Surveys (Nig) Ltd vs Nwagbara (2007) All FWLR (Pt 386) 742. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant and to proceed to exercise its powers under Section 15 of the Court of Appeal Act to consider the unchallenged evidence of the Appellant before the lower Court and order the discharge of the Appellant from the garnishee proceedings. Counse referred to the case of Ezeobi Vs Daily Times (Nig) Plc (2013) 17 NWLR (Pt 1382) 200 on the circumstances when the Court of Appeal exercises its powers under Section 15 of the Court of Appeal Act and stated that the present case met all the requirements for the exercise of the power by the Court.
Counsel concluded his arguments by praying the Court find merit in the appeal and to allow same and set aside the finding and order made by the lower Court in its interlocutory Ruling and to order the discharge of the Appellant from the garnishee proceedings before the lower Court.
In his response, Counsel to the first and second Respondents formulated three issues for determination on the appeal and these were:
i. Whether the alleged complaints contained in Appellant?s grounds of appeal are not a challenge to the judicial discretion of the learned trial Judge as encapsulated in Sections 83 and 87 of the Sheriffs and Civil Process Act.
ii. Whether the learned trial Judge was not exercising its discretion judiciously and judicially under Sections 83 and 87 of the Sheriffs and Civil Process Act when it held that, I have looked at the affidavit to show cause filed by the 12th Garnishee (Sterling Bank Plc), the Court is not satisfied because the 12th Garnishee did not disclose fully the state of the account. I hereby summon the Regional Head of Operations, North (Mrs. Akoh) to come at the next adjourned date with account record keeping books and account data base to show cause properly.
iii. Whether in a garnishee proceeding, a judgment creditor/applicant who has obtained a garnishee order nisi is mandatorily required to file a counter affidavit to any matter of fact raised by a garnishee in its affidavit to show cause to which the applicant disagrees.
Now, the principles governing formulation of issues for determination and the adumbration of arguments in an appeal have been well set out and established by the Courts. It is an established principle that issues for determination must arise from the judgment or decision appealed against and must be distilled from the grounds of appeal – Shipcare Nigeria Limited, Owners of the M/T African Hyacinth Vs The Owners of the M/V Fortunato (2011) 7 NWLR (Pt. 1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt. 1284) 254, Odusote Vs Odusote (2012) 3 NWLR (Pt. 1288) 478, and Okechukwu Vs Independent National Electoral Commission (2014) 17 NWLR (Pt 1436) 255.
Dovetailing from this principle, the Courts have asserted that though a respondent to an appeal, who has neither cross-appealed nor filed a respondent notice, can formulate issues for determination in appeal, the issues so formulated cannot be at large and must arise from the grounds of appeal of the appellant Conoil Plc Vs Vitol SA (2012) 2 NWLR (Pt. 1283) 50, Akere Vs Governor, Oyo State (2012) 12 NWLR (Pt. 1314) 240, Nwagu Vs Fadipe (2012) 13 NWLR (Pt. 1318) 547. Where the issues for determination formulated by a respondent do not arise from the grounds of appeal of an appeal, they will be treated as incompetent and be discountenanced Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt. 1284) 254, Spring Bank Plc Vs Babatunde (2012) 5 NWLR (Pt. 1292) 83.
The first and the second Respondents did not cross appeal and neither did they file a Respondent?s notice to contend.
Looking at the three issues for determination formulated by their Counsel, it is obvious that the first and second issues for determination say the same thing and they are related to first and second grounds of appeal of the Appellant, while the third issue for determination is alien to the grounds of appeal and does arise from them. The third issue for determination is thus incompetent and it is hereby struck out. The arguments canvassed by Counsel to the first and second Respondents on the substantive appeal in the brief of arguments will be considered by this Court only in so far as they relate to the first and second issues for determination formulated by their Counsel.
Counsel to the first and second Respondents reproduced the provisions of Sections 83 and 87 of the Sheriffs and Civil Process Act and placed emphasis on the part of the provisions that says that where a garnishee disputes liability, a Court may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or may refer the matter to a referee and stated that these provisions give a trial Court the power of judicial discretion on the nature of the order to make where a garnishee disputes liability. Counsel stated that the finding and order made by the lower Court in the interlocutory Ruling complained against by the Appellant was made in pursuance of the exercise of this power of judicial discretion and that the Appellant failed to show the miscarriage of justice that it suffered by the exercise of discretion or how its right to fair hearing was violated by it. Counsel stated that for the purpose of exercise of the judicial discretion, the depositions in the affidavit in support of the application for the grant of the garnishee order nisi and those in the garnishee?s affidavit to show cause are what a trial Court relies on and that there is no need for the filing of fresh depositions on oath and he referred to the case of Oceanic Bank Plc vs Oladepo (2013) 8 WRN 157.
Counsel stated that there was no breach of due process by the lower Court in making the finding and order complained against and the lower Court in the light of the distinct and peculiar nature of garnishee proceedings as provided for by the statute and he referred to the cases of Nigeria Hotel Ltd Vs Nzekwe (1990) 5 NWLR (Pt 149) 189 and STB Ltd Vs Contract Resources (Nig) Ltd (2001) 6 NWLR (Pt 708) 124. Counsel stated that the failure of the first and second Respondents to file a counter affidavit to the affidavit showing cause did not rob the lower Court of its discretionary powers to try and determine the liability of the Appellant to the third Respondent. Counsel stated that the violation of a right to fair hearing is a matter of fact and it is determined the nature and circumstances of each particular case and a holistic approach to the entire proceeding of a Court is essential to determine if there has been a breach of fair hearing and he referred to the case of Ukachukwu Vs PDP (2014) 17 NWLR (Pt 1435) 197.
Counsel stated that looking at the circumstances of this case, it is obvious that the lower Court maintained a level playing field between the parties and gave them an equal opportunity to be heard and he referred to the case of FHA Vs Kalejaiye (2011) All FWLR (Pt. 526) 1633. Counsel stated that the order made by the lower Court summoning the Head of Operations of the Appellant was a proper consequential order which flows directly from the facts in dispute, and for the sake of arriving at a just determination of a matter pending before it and he referred to the cases of Obayagbona Vs Obazee (1972) 5 SC 247 and Registered Trustees of Apostolic Church Vs Olowoleni (1990) 6 NWLR (Pt 158) on the definition of consequential order. Counsel urged the Court to resolve all the issues for determination in favour of the first and second Respondents.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same as being devoid of substance.
This appeal emanated from a garnishee proceeding. Now, garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed strictly by the provisions of the Sheriffs and Civil Process Act ? United Bank for Africa Plc Vs Ubokulo (2009) LPELR 8923 (CA), Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801 (CA). Thus, resolution of this appeal will turn largely on the issue of whether the steps taken by lower Court in the conduct of the garnishee proceedings before it were in accord with the provisions of the Sheriffs and Civil Process Act.
The nature of and procedure for garnishee proceedings has been stated and reiterated by the Courts in several cases. Garnishee proceeding is one of the ways of executing a judgment. It is the procedure whereby the judgment creditor obtains the order of Court to attach any debt owing to the judgment debtor from any person or body within the jurisdiction of the Court to satisfy the judgment debt. That process is known as ?attachment of debt. It is a separate and distinct action between the judgment creditor and the person or body holding custody of the assets of the judgment debtor, although it flows from the judgment that pronounced the debt owing. A successful party, in his quest to move fast against the assets of the judgment debtor usually makes an application ex parte for an order in that direction.
If the application ex parte is adjudged to be meritorious, the Judge will make an order which is technically known as a ?garnishee order nisi? attaching the debt due or accruing to the judgment debtor from such person or body who from the moment of making the order is called the garnishee. The order also carries a directive on the garnishee to appear and show cause why he should not pay to the judgment creditor the debt owed by it to the judgment debtor. The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 86 of the Sheriffs and Civil Process Act Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120, Sokoto State Government Vs Kamdax (Nig) Ltd (2004) 9 NWLR (Pt. 878) 345, Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State (2004) 9 NWLR (Pt. 879) 665, Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt 1083) 418, Nigerian Telecommunications Plc Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356 and First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt 1218) 199.
Where a garnishee appears in Court in obedience to the garnishee order nisi and files an affidavit to show cause disputing liability, the Sheriffs and Civil Process Act provides what should happen. It says in its Section 87 that:
If a garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.?
This provision has been interpreted by the Courts as containing the options available to a trial Court in resolving a situation where a garnishee disputes liability ? see the cases of Nigeria Hotels Ltd Vs Nzekwe (1990) 5 NWLR (Pt 149) 187, United Bank of Africa Plc Vs Societe Generale Bank Ltd (1996) 10 NWLR (Pt 478) 381, Guaranty Trust Bank Plc Vs Union Bank of Nigeria Plc (2007) All FWLR (Pt 374) 377, Fidelity Bank Plc Vs Okwuowulu (2013) 6 NWLR (Pt 1349) 197.
The first question that arises for resolution is when is there said to be a dispute of liability by a garnishee and which requires further enquiry under Section 87 of the Sheriffs and Civil Process Act? Is it once a garnishee appears to a garnishee order nisi and files an affidavit simpliciter to show cause? Or is it where a garnishee files an affidavit to show cause dovetailing on specifics and the facts deposed therein are countered or contested by the judgment creditor in a further affidavit? Or is it where a garnishee files an affidavit to show cause dovetailing on specifics, whether or not the judgment debtor counters those facts in a further affidavit? Counsel to the Appellant contended that since there was no further affidavit from the first and second Respondents contesting the assertion of the Appellant in its affidavit to show cause that the third Respondent did not maintain any account with it and that the two accounts in its custody were not in the names of the third Respondent, there was no dispute warranting further inquiry under Section 87 of the Sheriffs and Civil Process Act and that the Appellant ought to have been discharged by the lower Court and that by putting the case for further inquiry, the lower Court violated due process and breached the right of the Appellant to fair hearing. Counsel to the first and second Respondents retorted that the filing of a further affidavit to counter the facts in the affidavit to show cause was unnecessary and that the lower Court was correct in putting the matter forward for further inquiry.
The position of case law seems to put forward three different scenarios. Firstly, that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability does not condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, there is no dispute of liability warranting further enquiry under Section 87 of the Sheriffs and Civil Process Act, and the Court can make an order of garnishee absolute. Skye Bank Plc Vs Colombara & Anor (2014) LPELR 22641(CA), Governor of Imo State Vs Ogoh (2015) LPELR 25949(CA), Access Bank Plc Vs Adewusi (2017) LPELR 43495(CA), First Bank of Nigeria Plc Vs Okon (2017) LPELR 43530(CA), Heritage Bank Ltd vs Interlagos Oil Ltd (2018) LPELR 44801(CA), First Bank of Nigeria Plc Vs Yegwa (2018) LPELR 45997(CA). In other words, the garnishee must make out a prima facie case in favour of an order for an issue to be tried Central Bank of Nigeria Vs Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA).
Secondly, that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars and conflict with the facts deposed by the judgment creditor, there is a dispute of liability warranting the use of Section 87 of the Sheriffs and Civil Process Act ? Central Bank of Nigeria Vs Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, Mainstreet Bank Ltd Vs United Bank for Africa Plc (2014) LPELR 24118(CA), Eco Bank (Nig) Plc Vs Mbanefo & Bros Ltd (2014) LPELR 41106 (CA), Total Upstream Nigeria Ltd Vs A.I.C. Limited (2015) LPELR 25388(CA).
The third scenario is where a garnishee order nisi is granted on the basis of a general statement of a judgment creditor that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars showing that it has no such funds, a dispute as to liability warranting the use of Section 87 of the Sheriffs and Civil Process Act will only arise where the judgment creditor deposes to a further affidavit contesting the assertions of the garnishee, otherwise the garnishee would be discharged on the basis of its deposition Zenith Bank Plc Vs Kano (2016) LPELR 40335(CA), Eco Bank Nigeria Limited Vs Udofia (2018) LPELR 45164(CA), All Works Commercial Company Ltd Vs Central Bank of Nigeria (2018) LPELR 45991(CA). This is in furtherance of the principle that where specific facts in a response affidavit are not covered by the depositions in the original affidavit, the party must file a further affidavit to counter those specific facts, otherwise they will be deemed admitted ? Badejo Vs Federal Ministry of Education (1996) 8 NWLR (Pt 464) 15, Dana Airlines Ltd Vs Yusuf (2017) LPELR 43051(CA), Yandy Vs Alhaji Umar Na Alhaji Lawan & Sons Ltd (2018) LPELR 45634(CA), Akiti Vs Oyekunle (2018) LPELR 43721(SC).
It is obvious that what the Courts did in the three stated scenarios was to evaluate the affidavit evidence of the parties to see if there is a real dispute of liability. In the instant case, this Court has read through the records of appeal compiled and transmitted by the parties and it cannot find the original application filed by the first and second Respondents, and upon which the lower Court granted the garnishee order nisi, contained anywhere therein. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court ? Oseni Vs Bajulu (2009) 18 NWLR (Pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 NWLR (Pt 1198) 1 and Garuba Vs Omokhodion (2011) 15 NWLR (Pt. 1269) 145. The Court is thus unable to assess the quality of the facts deposed by the first and second Respondents on the ownership of accounts by the third Respondent in the custody of the Appellant vis a vis the deposition of the Appellant.
The Court is handicapped in determining which of the above stated three scenarios, particularly between the second and third scenarios, the present case should fall. To attempt to make the determination will necessitate the Court speculating and conjecturing the contents of the affidavit in support of the original application. It is elementary that a judicial inquiry is allergic to speculations and conjectures and they cannot be relied upon by a Court of law ? Long-John Vs Blakk (1998) 5 SCNJ 68, Orhue Vs NEPA (1998) 7 NWLR (Pt 577) 187. In Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt 620) 555, Uwaifo, JSC made the point that speculation is a mere variant of imaginative guess which, even where it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it.
It is trite that an appellant ought to prosecute his case diligently and in this regard he is obliged to place before the Court all the relevant materials on the issue he has called upon the Court to consider and determine on. T. A. S. A. Ltd Vs Dantrans Nig Ltd (1996) 10 NWLR (Pt 478) 360, Nwana Vs Federal Capital Development Authority (2007)11 NWLR (Pt 1044) 59.
The Court will thus presume the facts against the Appellant and it is unable to fault the finding of the lower Court that, on the facts presented by the parties, there was a need for a further enquiry under Section 87 of the Sheriffs and Civil Process Act.
Going to the provisions Section 87 of the Sheriffs and Civil Process Act, the operative word used therein is ?may? and this connotes that the provision gives the Court the power of discretion on what to do where it decides to proceed with further enquiry on the basis that the garnishee disputes liability. This is in consonance with the general principle that the grant or refusal of a garnishee order is purely discretionary ? A Barzasi Vs B. Visinoni & Anor (1975) NNLR 6, Roberts Petroleum Ltd Vs Bernard Kenny Ltd (in liquidation) (1982) 1 WLR 301. The principles governing exercise of discretion by a Court have been laid down by the Courts over the years. It is trite that when a Court is called upon to exercise its discretion in favour of an application, it must ensure that it does not act arbitrarily but judicially and judiciously based on sound principle of law and by giving weight to relevant considerations First Fuels Ltd Vs NNPC (2007) 2 NWLR (Pt 1018) 276, Nigerian Laboratory Corporation Vs Pacific Merchant Bank Ltd (2012) 15 NWLR (Pt 1324) 505.
A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations CFAO (Nig) Plc Vs Sanu (2008) 15 NWLR (Pt. 1109) 1, Bello Vs Yakubu (2008) 14 NWLR (Pt 1106) 104. In General and Aviation Services Ltd Vs Thahal (2004) 10 NWLR (Pt 880) 50, Uwaifo, JSC stated that:
It is a rule of equity that where the exercise of discretion plays a part, it is expected that the Court will act in conformity with the ordinary principles upon which judicial discretion is exercised otherwise an appellate Court will interfere with the discretion. There is always the need for a Court exercising discretion to give reasons in justification of the exercise. There can hardly be any justifiable reasons for exercising discretion upon imprecise facts. It is the nature and strength of facts available to the Court that provide the tonic for the proper exercise of discretion.
It will be recalled that upon reading the affidavit to show cause, the lower Court stated it was not satisfied that the Appellant made a full disclosure on the state of the account of the third Respondent and it summoned the Regional Head of Operations of the Appellant, North (Mrs. Akoh) to attend Court with account record keeping books and account data base to show cause properly. Thus, the question is whether, on the state of the facts before it, the lower Court exercised it discretion judicially and judiciously, not mala fide, arbitrarily or illegally, in making the finding and the order. In other words, whether the exercise of discretion by the lower Court accorded with the dictates of justice. Babatunde Vs Pan Atlantic Shipping and Transport Agencies Ltd (2007) 13 NWLR (Pt 1050) 113, Ado Vs Commissioner for Works, Benue State (2007) 15 NWLR (Pt. 1058) 429.
Now, in interpreting the provisions of Section 87 of the Sheriffs and Civil Process Act, the Courts are of the opinion that the discretion given to a Court where there are clear and unchallenged facts from a garnishee disputing liability is not open-ended, allowing it to make any order it desires. The Courts hold that the discretion is limited to either the Court calling for trial of the case or referring the matter to a referee, and nothing more. Star Deepwater Petroleum Limited Vs A.I.C. Limited (2015) LPELR 25387(CA), Total Upstream Nigeria Ltd Vs A.I.C. Limited (2015) LPELR 25388(CA). In Mainstreet Bank Ltd Vs United Bank for Africa Plc (2014) LPELR 24118(CA), the Court made the point thus:
Section 87 of the Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria 2004 has this to say: Although the provisions just reproduced say ‘MAY’ thereby giving the Court a discretion in the matter, such discretion must decidedly be exercised, not only judicially, but judiciously. Discretion that is exercised erratically is a pervasion of justice in all its ramifications. In the present case, the Appellant has disputed liability. He filed an affidavit and a further and better affidavit to which he annexed a certified true copy of statement of account which is dormant. There was no counter affidavit to counter the depositions in those affidavits.
The provisions of Section 87 of the Sheriffs and Civil Process Act, which stipulates what procedure to be adopted by the trial Court, where liability for the judgment debt is DISPUTED by the Garnishee, indeed limits the exercise of the Court?s discretion to either, to call for trial of the case, or to refer the matter to a referee. No other procedure is implied in the provisions of that statute ? It was the duty of the Court, in Garnishee Proceedings, to call on parties to show cause as required by law, but it was also his duty to have regard to the provisions of Section 87 ? in operating that duty.
Thus, the finding and the order made by the lower Court against the Appellant were outside the confines of the discretionary power granted it under Section 87 of the Sheriffs and Civil Process Act and its actions amounted to an injudicious and un-judicial use of discretion. The contention of Counsel to the Appellant that the lower Court did not follow due process in making the finding and order is correct and both the finding and the order are liable to be set aside.
The proper step to be taken by a Court where it decides to proceed under Section 87 of the Sheriffs and Civil Process Act is provided for in Order 8 Rule 8(2) of the Judgment Enforcement Procedure Rules and it is that where an order is made under Section 87 of the Act for the trial or determination of any issue or question, the Court shall set the issue or question down for hearing and shall direct which of the persons interested shall be plaintiff and which shall be defendant and the parties shall be at liberty to lead evidence. Central Bank of Nigeria Vs Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA). In Central Bank of Nigeria Vs Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, the Court explained the position thus:
Garnishee proceeding is a unique procedure which provides a clear and fair procedure to be followed in resolution of disputed liability. Section 87 of the Sheriffs and Civil Process Act provides ? Instead of trying to resolve the disputed liability based on conflicting affidavit evidence made by the parties herein and placing reliance on materials not put before the Court in garnishee proceedings, the trial Court should have adopted the procedure provided in Section 87 above to determine the liability of the Appellant.
To this end, he should have either allowed the parties call oral evidence to resolve the disputed areas or allowed them to cross-examine the deponents of the respective affidavits of the parties confronting them with whatever documentary evidence that are available which will reveal the true state of facts and enable make up his mind on the liability or otherwise of the Appellant.
This is what the lower Court ought to have done instead of making findings and summoning witnesses on its own ? see the unreported decision of this Court in Appeal No CA/L/412/2016 ? Standard Chartered Bank Nig. Ltd Vs Liquid Africa Holdings Ltd delivered on the 11th of July, 2018.
Counsel to the Appellant urged this Court that, should it find that the lower Court wrongly made the finding and the order in the interlocutory Ruling, it should exercise its powers under Section 15 of the Court of Appeal Act to discharge the Appellant as a garnishee. It is correct that this Court is empowered by the provisions in Section 15 of the Court of Appeal Act, 2004 to make any order necessary for determining the real question in controversy in an appeal and to, in doing so, generally exercise full jurisdiction over the whole proceedings as if the proceedings had been instituted in this Court as Court of first instance and may rehear the case in whole or in part. It is however, not a power that this Court can exercise as it desires. Certain conditions must exist for the power to come into play and these are:
i. that the High Court or trial Court must have had the legal power to adjudicate in the matter before the appellate Court can entertain it;
ii. that the real issue raised by the claim of the appellant at the High Court or trial Court must be capable of being distilled from the grounds of appeal;
iii. that all necessary materials to determine the matter must be available to the court for consideration;
iv. that the need for expeditious disposal of the case to meet the ends of justice must be apparent on the face of the material presented and, in this wise, the length of time between the disposal of the action at the trial Court and the hearing of the appeal is a factor; and
v. that the injustice or hardship that will follow if the case is remitted to the Court below must be clearly manifest. See the cases of Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423, Amaechi Vs Independent National Electoral Commission (2008) 5 NWLR (Pt 1080) 227, Ezeigwe Vs Nwawulu (2010) 4 NWLR (Pt 1183) 159 and Onyero Vs Nwadike (2011) 18 NWLR (Pt 1279) 954. As noted above, the original application filed by the first and second Respondents, and upon which the lower Court granted the garnishee order nisi is not contained in the records of appeal. All the materials necessary for this Court to exercise its power under Section 15 of the Court of Appeal Act are not available and the Court thus declines the invitation of the Counsel to the Appellant to exercise the power.
In conclusion, this Court finds merit in the appeal and it is hereby allowed. The finding and the order made against the Appellant in the interlocutory Ruling of the National Industrial Court sitting in Jos, Plateau State delivered by Honorable Justice R. H. Gwandu in Suit No NICN/JOS/5/2013 on the 2nd of June, 2016 are hereby set aside. The Appellant is however not discharged from the garnishee proceedings and the case file is remitted to the National Industrial Court sitting in Jos, Plateau State with a directive that another Judge should continue with the garnishee proceedings against the Appellant by setting down the issue of whether or not the third Respondent maintained an account with the Appellant down for hearing and to designate the parties as plaintiff and defendant thereon appropriately and give them liberty to lead evidence on the issue. The parties shall bear their respective costs of the appeal. These shall be the orders of the Court.
ADZIRA GANA MSHELIA, J.C.A.: I have had the benefit of reading in draft the lead Judgment of my learned brother, Abiru, J.C.A just delivered. I agree with his reasoning and conclusion that the appeal has merit and is allowed. I abide by the consequential orders contained in the lead Judgment, costs inclusive.
BOLOUKUROMO MOSES UGO, J.C.A.: I am in agreement with the lead judgment delivered by my learned brother H.A.O. ABIRU, J.C.A., I also allow the appeal and abide by all the consequential orders contained therein including that as to costs.
Appearances:
D. G. DasheFor Appellant(s)
Chief G.M. Kuttu with him, D. J. Gusen, S.S. Gomper, Sarah Farinto and D.C. Amos for 1st & 2nd Respondent.
A. H. Umar (CSC, Ministry of Justice, Bauchi State) for the 3rd Respondent
For Respondent(s)
