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UBA PLC & ANOR v. ALPHACELL TECHNO LTD & ANOR (2022)

UBA PLC & ANOR v. ALPHACELL TECHNO LTD & ANOR

(2022)LCN/16526(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, March 16, 2022

CA/A/339/2018

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Mohammed Mustapha Justice of the Court of Appeal

Bature Isah Gafai Justice of the Court of Appeal

Between

1. UNITED BANK FOR AFRICA PLC 2. BAYO ADEGOKE APPELANT(S)

And

1. ALPHACELL TECHNO LIMITED 2. REAL CLASSIC GLOBAL SERVICES LIMITED (Trading Under The Name And Style Of Coller & Cuff Drycleaners) RESPONDENT(S)

 

RATIO

WHETHER OR NOT AN INDIVIDUAL MEMBER OF A COMPANY CAN SUE OR TAKE AN ACTION TO RECOVER A WRONG OR IRREGULAR CONDUCT

Section 299 of C.A.M.A. is to the effect that only the company itself and not an individual can sue or take an action to recover a wrong or irregular conduct. See GOMBE V. P.W. (NIG.) LTD (1995) 6 NWLR (PT 604 402 SC, EJIKEME V. AMAECHI (1998) 3 NWLR (PT 542) 456 C.A, DAILY TIMES (NIG) PLC V. AKINDIJI (1998) 13 NWLR (PT 580) 22 AT 27 CA AND N.I.B. INVEST. W/A V. OMISORE (2006) 4 NWLR (PT. 969) 122 CA.
An individual member of the company is therefore precluded from taking upon himself the right of action which belongs to the company, unless he is so authorized to defend the suit. There are however, exceptions to the rule provided for by Section 300 of the Act; this exception comes into play, whereby the theory of lifting or piercing of the corporate veil, the legislature and the Courts, in exceptional circumstances, and where expedient, unveil a company to see the individuals or members behind it. See F.D.B. Financial Services Ltd v. Adesola (2000) 8 NWLR (pt.668) 170 at 13, NBCI v. Integrated Gas Nig. Ltd (1999) 8 NWLR (pt. 613) 119 at 129 where it was held: 

“certain consequences attach to the acts, motive or opinions of persons working for and inside the company. In PUBLIC FINANCE SECURITIES LTD V. JEFIA (1998) 3 NWLR (PT. 54) 602, it was held that:- 
“The Court can lift the veil. It can pull down the mask. The Court will lift the veil of incorporation of any company to find out who was behind the fraudulent and improper conduct of the company. This will be necessary where the canopy of legal entity is used to defeat public convenience, justifying wrong, perpetrate and protect fraud and crime… or involved in reckless or fraudulent trading activities tainted with fraud.” See Sections 93, 246, 290, 316, 336, 507, 631(4), OF THE COMPANIES AND ALLIED MATTERS ACT AND THE CASES OF N.N.B. LTD. V. BAZUNU (1995) 1 NWLR (PT. 575) 646, ADENIJI V. THE STATE (1992) 4 NWLR 248 AND FDB FINANCIAL SERVICES LTD. V. ADESOLA (SUPRA). It is very import to note that contrary to the vehement submissions of learned senior counsel, the action or conduct that may necessitate the lifting of the veil of incorporation is not limited to fraudulent conduct, as a matter of fact and law it extends to conduct likely to defeat public convenience or justifies wrong behavior.
The 2nd Appellant in this case is what one may call the operating mind of the 1st Appellant; the 1st Appellant does not have the capacity to act for itself in this regard, it needs a human ‘behind the wheels’, that is the function of the 2nd Appellant in this case. In TAFIDA & ANOR V GARBA(2013) LPELR-22076-CA in Court held:
“…the Supreme Court has deprecated the practice of using companies for unwholesome practices as the 1st Appellant has done herein. Speaking specifically on the theory of corporate personality, in NBCI V. Integrated Gas Nig. Ltd (1999) 8 NWLR (pt. 613) 119 at 129, it was held that a company must be accorded its corporate status of a separate entity from the biological persons that run it, the consequence of which is to draw a veil of incorporation over it and one is not ordinarily entitled to go behind to lift the veil. However, there are many circumstances under which the veil of incorporation can be pierced or lifted in order to ascertain the motives, or opinions of persons working for and inside the separate personality. One of the circumstances under which the corporate veil can be lifted is where for instance there is a complaint of improper or fraudulent conduct of the company such that the canopy of the legal entity is used to defeat public interest; personalities behind the 2nd Appellant have already been revealed by the 1st Appellant and his witnesses. The 1st Appellant who entered into Exhibit 1 with the Respondent cannot now claim that he is not bound or liable to the contract since he was the alter ego of the 2nd Appellant.”
PER MUSTAPHA, J.C.A.

THE POSITION OF LAW WHERE A GARNISHEE FAILS TO FILE AN AFFIDAVIT TO SHOW CAUSE WHT A GARNISHEE ORDER SHOULD NOT BE MADE ABSOLUTE

Where a Garnishee fails to file an affidavit to show cause why a Garnishee order Nisi should not be made absolute, the Court should proceed and make the order nisi to become absolute. The only way by which the Garnishee can express dissatisfaction with the order is to appeal against it.
It is for attitudes similar to those of the appellants that the Court in OCEANIC BANK PLC v. OLADEPO & ANOR (2012) LPELR-19670 (CA), held among other things thus: 
“…Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to 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 worst! It can therefore be made to pay the debt of the judgment debtor, 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.”
PER MUSTAPHA, J.C.A.

WHETHER OR NOT THE RIGHT TO FAIR HEARING IS ABSOLUTE

The right to fair hearing is not absolute. The right to fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing. See DANTATA VS MOHAMMED (2012) 8 NWLR (PT 1302) 366, NATIONAL FILMS & VIDEO CENSORS BOARD VS ADEGBOYEGA (2012) 10 NWLR (PT 1307) 45, EZECHUKWU VS ONWUKA (2016) LPELR-26055(SC), EZE VS FEDERAL REPUBLIC OF NIGERIA (2017) LPELR – 42097(SC) AND DARMA VS ECO BANK PLC (2017) LPELR-41663(SC).
The lower Court gave the Appellants every opportunity to present their case, but they failed to utilize the opportunities. They treated the orders of the lower Court nisi with levity, and after exhibiting all these behaviors in the lower Court, the Appellants have approached this Court to complain of lack of fair hearing. The doctrine of fair hearing is not a “one-way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court. See OKOTCHA VS HERWA LTD (2000) 15 NWLR (PT 690) 249 AT 258 G-H AND NEWSWATCH COMMUNICATION LTD VS ATTA (2006) FWLR (PT 318) 580 AT 600-601.
PER MUSTAPHA, J.C.A.

MOHAMMED MUSTAPHA, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of the Federal Capital Territory, Abuja, delivered on the 27th of March, 2018, Coram Honorable Justice A.S. Adepoju, dismissing two applications seeking the setting aside of the writ of attachment and sale of goods and an order of Court striking out the name of the 2nd Appellant in forms 48 and 49 dated 28th of September, 2017 respectively, at pages 1 to 11 of the supplementary record of appeal. The lower Court dismissed the applications, directing the Applicants to pay the judgment sum plus cost of the garnishee proceedings in regard to the order absolute made on the 5th of May, 2016.

​Dissatisfied, the Appellants appealed to this Court, by a notice of appeal first filed on the 29th day of March, 2018, and an amended notice filed on the 9th day of May, 2018. The amended notice of appeal was deemed properly filed on the 11th of October, 2021. The Appellants’ brief was filed on the 13th of November, 2018 but deemed properly filed on the 11th of October, 2021. The 1st Respondent’s brief was filed on the 21st of October, 2019, but deemed properly filed on the 11th of October, 2021.

The amended notice and grounds of appeal shorn of their particulars are as follows:
GROUNDS APPEAL:
GROUND 1:
The learned trial judge erred in law when she held that Bayo Adegoke is a necessary party being an agent of a disclosed principal.
GROUND 2:
The learned trial judge erred in law when she held that Bayo Adegoke was in contempt for refusing to comply with the Order in Form 48 and 49 issued against him.
GROUND 3:
The learned trial judge erred in law when she held that the veil of incorporation of UBA PLC could be lifted so as to hold Bayo Adegoke responsible for the Act of the 1st Appellant i.e UBA PLC.
GROUND 4:
The learned trial Court erred in law when she refused to set aside the writ of attachment and execution which is contrary to the Garnishee Order Absolute.
GROUND 5:
The learned trial judge erred in law when she ordered the bank to pay the sum of N21,276,000.00 within seventy-two hours.
GROUND 6: 
The learned trial judge erred in law when she found and held:
“The contention of the 5th Garnishee/Applicant that the order of the Court is at variance with the amount stated in the writ of Attachment/Sale of Goods is a mischievous way of interpreting the order of the Court because in the final instance the 5th Garnishee did not file any affidavit to Show Cause until the order absolute. I will not be wrong to say that the 5th Garnishee/Applicant was merely cooking up figure in order to save its customer from fulfilling his obligation and liability towards the judgment debtor, I do not believe the conflicting and inconsistent figure given by the 5th Garnishee/Applicant. 
And this occasioned a miscarriage of justice. 
GROUND 7:
The learned trial judge erred in law when she held: 
“The submission of the counsel to the judgment creditor/garnishor that the writ cannot be set aside unless it is shown to have irregular or based on fraud is the current position of the law. And nowhere has the garnishee shown any error or clerical mistake or proof of fraud that warrants the setting aside of the writ of execution.” 
And this occasioned a miscarriage of justice. 
GROUND 8: 
The learned trial judge erred in law when she found and held thus: “The 5th garnishee/applicant had issued three number managers cheque in the fulfillment of the judgment debt owed the judgment creditor before it stopped the payment and suddenly realized that the order executed was at variance with the writ of attachment This application is a complete waste of time and should be consigned to dustbin of history.” 
And this occasioned a miscarriage of justice. 
GROUND 9: 
The learned trial judge erred in law when she found and held: 
“The Court having dismissed the application to stop payment of the cheques to the judgment creditor, the 2nd applicant is to effect the payment of the said three manager’s cheque, by crediting the account of the 3rd respondent with the value on the face of the Cheques being the sum of N21,386,500 (Twenty One Million Three Hundred and Eighty-Six Thousand Five Hundred Naira) only for onward payment to the judgment creditor within 72 hours, failure of which the 2nd applicant shall be arrested and brought before this Court to show cause why he should not be committed to prison.”
And this occasioned a miscarriage of justice. From these grounds, the following issues were formulated for determination on behalf of the Appellant by G. Ofodile Esq., SAN in the Appellants’ brief and adopted by Adetola Olulenu ESQ.
ISSUES FOR DETERMINATION: 
1. Whether the trial judge was right to have lifted the veil of incorporation of UBA PLC against the 2nd Appellant and whether Bayo Adegoke is a necessary party to Garnishee proceedings that gave rise to this appeal. (Distilled from grounds 1, 2 & 3 of the Amended Notice of Appeal.) 
2. Whether the trial judge was right to have refused to set aside the writ of attachment and execution and ordered that the 1st Appellant should pay the sum of N21,276,000.00 which was not standing to the credit of the judgment debtor (Distilled from grounds 4 & 5 of the Amended Notice of Appeal). 
3. Whether the trial judge was right to hold that the Appellants were cooking up figures to save their customer from fulfilling his obligation and liability towards the judgment creditor instead of appointing the CBN as special referee pursuant to Section 87 of the Sheriff and Civil Process Act Cap L07 LFN (Distilled from ground 6 of the Amended Notice of Appeal) 
4. Whether the trial judge was right to have held that the application to set aside the writ of attachment is a complete waste of time, thereby ordering the Appellant to make the payment within 72 hours which is a breach of their constitutional right of 14 days to further appeal to the Court of Appeal. (Distilled from grounds 8 & 9 of the Amended Notice of Appeal) 

ISSUE ONE: 
Whether the trial judge was right to have lifted the veil of incorporation of UBA PLC against the 2nd Appellant and whether Bayo Adegoke is a necessary party to Garnishee proceedings that gave rise to this appeal. (Distilled from Grounds 1, 2 & 3 of the Amended Notice of Appeal).

It is submitted for the Appellants that the authority of IBWA V SASEGBON (2007) NWLR part 1059 page 195 relied upon by the trial Court is distinguishable from the present case, because in that case the legal adviser was served with Form 48, not a mere staff such as the 2nd Appellant, who is an employee, and the issue in this case is not fraud.

That also the 2nd Appellant was not a party at the beginning, the 1st Appellant was a mere garnishee who sought equitable reliefs to extend time by which it can show cause why judgment should not be enforced especially as the judgment debtor, the 2nd Respondent did not have any funds in its account with the 1st Respondent, to the tune of the amount sought to be enforced.

Learned senior counsel contends that the veil of incorporation is not lifted without recourse to the incorporation documents in the corporate affairs to determine the particulars of the directors and shareholders, and not hold a mere employee liable, the Court was referred to OYEBANJI V STATE (2015) 14 NWLR part 1479.

It is further submitted that the appellant protested when Form 48 was issued against the 2nd Appellant, as an agent of a disclosed principal who should not incur any liability in law, learned counsel referred to OSIGWE V PSPLS MGT CONST LTD (2009) 3 NWLR part 1123 page 378 and J & J TECHNO NIG. LTD V H.O.S. LTD (2015) 8 NWLR part 1460 page 1.

It is submitted for the 1st Respondent in response that it is not the law that only directors or shareholders can be held responsible when a Court decides to lift the veil of incorporation. Especially as the 2nd appellant issued the checks and went behind to block them, in his position as the branch manager of the 1st appellant.

That a clear disobedience of a valid Court order amounts to an illegality, especially in regard to a bank draft which in itself equals cash payment, learned counsel referred the Court N.D.I.C V VIBELKO NIG LTD (2006) ALL FWLR part 336 page 386.

RESOLUTION OF ISSUE ONE: 
Section 299 of C.A.M.A. is to the effect that only the company itself and not an individual can sue or take an action to recover a wrong or irregular conduct. See GOMBE V. P.W. (NIG.) LTD (1995) 6 NWLR (PT 604 402 SC, EJIKEME V. AMAECHI (1998) 3 NWLR (PT 542) 456 C.A, DAILY TIMES (NIG) PLC V. AKINDIJI (1998) 13 NWLR (PT 580) 22 AT 27 CA AND N.I.B. INVEST. W/A V. OMISORE (2006) 4 NWLR (PT. 969) 122 CA.
An individual member of the company is therefore precluded from taking upon himself the right of action which belongs to the company, unless he is so authorized to defend the suit. There are however, exceptions to the rule provided for by Section 300 of the Act; this exception comes into play, whereby the theory of lifting or piercing of the corporate veil, the legislature and the Courts, in exceptional circumstances, and where expedient, unveil a company to see the individuals or members behind it. See F.D.B. Financial Services Ltd v. Adesola (2000) 8 NWLR (pt.668) 170 at 13, NBCI v. Integrated Gas Nig. Ltd (1999) 8 NWLR (pt. 613) 119 at 129 where it was held: 
“certain consequences attach to the acts, motive or opinions of persons working for and inside the company. In PUBLIC FINANCE SECURITIES LTD V. JEFIA (1998) 3 NWLR (PT. 54) 602, it was held that:- 
“The Court can lift the veil. It can pull down the mask. The Court will lift the veil of incorporation of any company to find out who was behind the fraudulent and improper conduct of the company. This will be necessary where the canopy of legal entity is used to defeat public convenience, justifying wrong, perpetrate and protect fraud and crime… or involved in reckless or fraudulent trading activities tainted with fraud.” See Sections 93, 246, 290, 316, 336, 507, 631(4), OF THE COMPANIES AND ALLIED MATTERS ACT AND THE CASES OF N.N.B. LTD. V. BAZUNU (1995) 1 NWLR (PT. 575) 646, ADENIJI V. THE STATE (1992) 4 NWLR 248 AND FDB FINANCIAL SERVICES LTD. V. ADESOLA (SUPRA). It is very import to note that contrary to the vehement submissions od learned senior counsel, the action or conduct that may necessitate the lifting of the veil of incorporation is not limited to fraudulent conduct, as a matter of fact and law it extends to conduct likely to defeat public convenience or justifies wrong behavior.
The 2nd Appellant in this case is what one may call the operating mind of the 1st Appellant; the 1st Appellant does not have the capacity to act for itself in this regard, it needs a human ‘behind the wheels’, that is the function of the 2nd Appellant in this case. In TAFIDA & ANOR V GARBA(2013) LPELR-22076-CA in Court held:
“…the Supreme Court has deprecated the practice of using companies for unwholesome practices as the 1st Appellant has done herein. Speaking specifically on the theory of corporate personality, in NBCI V. Integrated Gas Nig. Ltd (1999) 8 NWLR (pt. 613) 119 at 129, it was held that a company must be accorded its corporate status of a separate entity from the biological persons that run it, the consequence of which is to draw a veil of incorporation over it and one is not ordinarily entitled to go behind to lift the veil. However, there are many circumstances under which the veil of incorporation can be pierced or lifted in order to ascertain the motives, or opinions of persons working for and inside the separate personality. One of the circumstances under which the corporate veil can be lifted is where for instance there is a complaint of improper or fraudulent conduct of the company such that the canopy of the legal entity is used to defeat public interest; personalities behind the 2nd Appellant have already been revealed by the 1st Appellant and his witnesses. The 1st Appellant who entered into Exhibit 1 with the Respondent cannot now claim that he is not bound or liable to the contract since he was the alter ego of the 2nd Appellant.”

I hasten to point out that disobedience of Court orders is an illegal act, and it has consequences. The 2nd Appellant cannot under the cover of being an employee disobey Court orders. As rightly held in IBWA V SASEGBON supra, “…. once there is an allegation of contempt …the veil of incorporation will be lifted in order to hold the principal officers of the company who participated in the alleged contempt responsible.” 

Paragraph 3b of the affidavit in support of the motion for contempt clearly shows that the 2nd appellant issued managers cheques in favour of the chief registrar of the FCT High Court and proceeded to block those cheques as manager of the 1st appellant in disobedience of the Court order.

It should be noted that Contempt of Court is an affront to the authority and dignity of the Court. See AWOSANYA V BOARD OF CUSTOMS & EXERCISE (1973) 3 SC 47. The 2nd appellant in this case issued out cheques in favour of the chief registrar, and went behind to block value being given to those same cheques, utterly disrespecting the Court as a consequence Contempt of Court is criminal when it consists of interference with administration of law, thus impeding and perverting the course of justice as in this case. Thus, justifying the lifting of the veil of the 1st appellant to deal with the 2nd appellant appropriately.

It is for these reasons that I now resolve this issue in favour of the 1st Respondent, against the Appellant. 
ISSUE TWO: 
Whether the trial judge was right to have refused to set aside the writ of attachment and execution and ordered that the 1st Appellant should pay the sum of N21,276,000.00 which was not standing to the credit of the judgment debtor (Distilled from Grounds 4 & 5 of the Amended Notice of Appeal).

It is submitted that the 1st Appellant issued out the manager’s cheques in three different cheques in favour of the Chief Registrar in order to avoid the executioners but later filed an application seeking to set aside the writ of attachment, and the execution levied on the 18th of July, 2017, as well as restraining the 3rd Respondent from presenting for clearing the manager’s cheques and it is for these reasons that the 1st Respondent initiated contempt proceedings against the Appellant.

Learned counsel further submits that the writ of attachment issued by the Court is defective because it was not in consonance with the Court order. The trial Court shut its eyes to the truth as the state of the accounts of the judgment debtor with the 1st appellant because while the credit balance of the Naira account is N50,763.16, the balance of the dollar account is $189.31 and asking the appellant to pay N21,276,000.00 as against the actual credit of the judgment debtor is injustice. The Court referred to SALAWU V ADEBANKE (2010) 4 NWLR part 1185 page 456.

That the evidence of what is standing to the credit of the judgment debtor is before the Court, and the Court is bound to take judicial notice of this fact, as such the Court cannot rightfully issue a writ against the appellant in the value of the sum standing to the credit of the judgment debtor.

Learned counsel contends that the refusal of the trial Court to set aside the writ of attachment occasioned a miscarriage of justice to the appellants, the Court was referred to IBAHDE NIG LTD V AKWARI (2015) NWLR part 1477 page 529.

It is submitted in response that the appellants did not challenge the order absolute in their application of the 20th July, 2017, and that even if they did it would have amounted to an abuse, since a similar application was heard and dismissed on the 15th of June, 2017, and there is no appeal against that ruling.
​ 
That the Appellant did not dispute the debt, and did not pay the amount due into Court even after he was served with the order nisi. The trial Court was therefore right to issue an order for attachment against the 1st Appellant. It is further submitted that the Court became functus officio after the order, and there is nothing before it to show that the process leading to the execution was obtained by fraud, while referring to BELLO V INEC (2010) 2-3 SC PAGE 128, learned counsel further contended that the order absolute could only have referred to the judgment debt and nothing else since there was no affidavit to show cause at the time of making the order. In any case, learned counsel argued, whichever manner the order may have been couched, the appellate Court in its wisdom has the power to correct the order to meet the justice of the case, he referred to OSIGWE V PSPLS MANAGEMENT CONSORTIUM LTD (2009) 3 NWLR part 1128 page 378.

RESOLUTION OF ISSUE TWO: 
From the onset, it is important to note in this case that, right or wrong, the appellants chose not to challenge the order absolute in their application of the 20th of July, 2017 and as rightly pointed out, even if they did, it would have amounted to little or next to nothing, because a similar application was heard and determined on the 15th of June, 2017, with no appeal filed. Be that as it may, the most important factor to reckon with in the circumstances of this case is that there is no affidavit to show cause before the trial Court when the order absolute was made. The import of this is that where the garnishee who is served with the order nisi at least fourteen days before the day fixed for hearing, as in this case, fails to file an affidavit to show cause the Court is entitled to make the order nisi absolute against her on that day. See Section 83(2) of the Sheriff and Civil Process Act which provides thus: 
“At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.” See FBN V KUNLE (2019) LPELR-CA.
The trial judge was right to have made the order nisi absolute because the only consideration for not making an order nisi absolute is a cogent affidavit to show cause. See OMNIA (NIG.) LTD V. DYKTRADE LTD (2007) 15 NWLR (PT.1058) 576 and UNITED BANK FOR AFRICA PLC v. EKANEM (MD PARAGON ENG. LTD) & ANOR (2009) LPELR-8428 (CA), where it was held: 
Where a Garnishee fails to file an affidavit to show cause why a Garnishee order Nisi should not be made absolute, the Court should proceed and make the order nisi to become absolute. The only way by which the Garnishee can express dissatisfaction with the order is to appeal against it.
It is for attitudes similar to those of the appellants that the Court in OCEANIC BANK PLC v. OLADEPO & ANOR (2012) LPELR-19670 (CA), held among other things thus: 
“…Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to 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 worst! It can therefore be made to pay the debt of the judgment debtor, 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.”
It is difficult to disagree with learned counsel to the 1st Respondent that the trial Court had no option, other than to issue a writ of attachment against the 1st appellant, in view of the fact that the 1st Appellant did not dispute the debt, nor paid into the Court the amount due from him, even after service of the order nisi or even appeared in response to the summons and hearing noticed clearly served on him.
​I fail to see the logic or even common sense, much less the law, with due respect to learned senior counsel to the appellants, in the argument that the trial Court ought to have known the correct position of the judgment debtor’s account from the application to set aside dated 20th of July, 2017. The appellants failed all entreaties by the Court when it gave them the opportunity to present their case, but they refused or neglected to take advantage of that opportunity, so they cannot be heard to complain much less brandish “the interest of justice” as a magic wand, because, “Justice of a case cannot be determined in vacuum but in relation to the facts of the case. Justice so to say, which is not done within the facts of a case is not justice properly so-called but justice in inverted commas, and therefore injustice.” See BUHARI V INEC (2008) LPELR-814-SC.

I agree with learned counsel for the 1st Respondent that the order absolute could only have made reference to the judgment debt, and nothing else, especially as there was no affidavit to show cause when the order was made. The writ of attachment also attests to that and the appellant was neither in doubt nor misled by the order, that is why he did not complain.

It is for these reasons that I now resolve this issue in favour of the 1st Respondent, against the Appellant.

ISSUE THREE:
Whether the trial judge was right to hold that the Appellants were cooking up figures to save their customer from fulfilling his obligation and liability towards the judgment creditor instead of appointing the CBN as special referee pursuant to Section 87 of the Sheriff and Civil Process Act Cap L07 LFN. (Distilled from ground 6 of the Amended Notice of Appeal)

It is submitted for the Appellants that the standing to the credit of the judgment debtor were N50,763.16 and $189.31 from the affidavit to show cause, and this necessitated the application to set aside the writ of attachment.

That the trial Court after ordering the 1st appellant to pay the amount standing in credit of the judgment debtor’s account to the judgment debtor went ahead to levy execution which was at variance with the judgment.

While referring to EMEHOR V OKOWA (2016) 11 NWLR part 11522 page 35, learned counsel submits that the trial Court was biased because it embarked on a voyage of discovery, as a result of which the judgment is perverse.

It is contended for the appellants that the trial Court could have appointed the Central Bank, a referee to get to a different decision; and that failure to do so sacrificed justice on the altar of speed.

It is submitted in response that the allegation of bias is unfounded, especially as the Appellants treated the process of the Court leading to the grant of the order absolute with contempt and levity, and that Section 87 of the Sheriffs and Civil Process Act does not apply because the Appellants failed to take advantage of the window of opportunity afforded them to dispute the liability of the judgment before the order nisi was made absolute.

That the part of the judgment complained of is an orbiter, where the trial Court made comments in passing, as it did not the rationale for the decision of the Court, learned counsel referred to UDENSI NDUBISI & 20 ORS V SURESH JOPANPUTRA & ANR RE: DIAMOND BANK LTD at page 126.

RESOLUTION OF ISSUE THREE: 
The accusation of bias on the part of the trial Court is uncharitable, to say the least, in view of the fact that the appellants cannot escape blame for their failure or refusal to file an affidavit to show cause at the relevant time, if they meant to avoid the order nisi being made absolute. The appellants only filed a motion to set aside the order absolute after the fact. They had all the time in the world to file the affidavit to show cause but neglected to do so. They cannot be heard to turn around to blame the trial Court for their inadequacy. Essentially, where a party by the evidence on record did not show diligence in utilizing the opportunity to be heard, he cannot turn around to claim lack of fair hearing or any form of unfairness on account of its failings. See ABUDULLAHI & ORS V ADETUTU (2012) LPELR-7973-CA.

The suggestion that the trial Court ought to have ordered the determination of the disputed amount by reference to the central bank in accordance with the provisions of Section 87 of the Sheriffs and Civil Process Act also falls flat on its face because the circumstances of the case did not warrant doing so. For the avoidance of doubt Section 87 of the Sheriffs and Civil Process Act sought to be relied on states as follows: 
“if the 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 or may refer the matter to a referee.”

In this case, unfortunately the appellants did not submit to the authority of the Court, at least not in regard to the disputed amount, until after the order nisi was made absolute. So, having failed to live up to what is expected of them, by disputing the amount in good time, the appellants cannot be heard to turn around to blame the Court for making the order absolute.

On the issue of variance between the order of the trial Court and the amount standing to the credit of the judgment debtor in the bank, I do not think it is fair or justified to accuse the trial of pervasion, not least because in the circumstances, the trial Court cannot be faulted for arriving at the decision it did when it held at page seven of the supplementary record of appeal that: 
“it is also pertinent to ask whether the 5th garnishee/applicant has shown any good cause to set aside the writ of attachment and sale of goods executed by the 3rd Respondent? As rightly pointed out by the 5th garnishee/applicant’s counsel, an application of this sort calls for the discretionary exercise by the Court, and such discretion must be anchored on cogent and compelling reasons. 
The reason adduced by the 5th garnishee/applicant in its affidavit is very unmeritorious and frivolous… the writ cannot be set aside unless it is shown to have been irregular or based on fraud… and nowhere has the garnishee shown any error or clerical mistake or proof of fraud that warrants the setting aside of the writ of execution.”

The Appellant has not shown cogent or convincing reason in its affidavit at trial to justify the setting aside of the order absolute by the trial Court, as such one cannot blame the trial Court for not exercising its discretion in favour of the appellants in the circumstances.

In any case, the part of the judgment complained of, as rightly submitted for the 1st respondent, is nothing more than an orbiter. Those were comments clearly made in passing and in no way formed the rationale for the conclusion reached by the trial Court. See PDP V USMAN (2015) LPELR-26032-CA.

It is for these reasons that I now resolve this issue in favour of the 1st Respondent, against the Appellants. 

ISSUE FOUR: 
Whether the trial judge was right to have held that the application to set aside the writ of attachment is a complete waste of time, thereby ordering the Appellant to make the payment within 72 hours which is a breach of their constitutional right of 14 days to further appeal to the Court of Appeal. (Distilled from Grounds 8 & 9 of the Amended Notice of Appeal)

It is submitted that the trial Court’s consequential order compelling the appellants to credit the judgment creditor’s account with the value of the cheques within a limited time of 72 hours amounts to compelling the appellants to do the impossible, learned counsel referred the Court to ESTISIONE H. NIG. LTD V OSUN STATE GOVERNMENT (2012) 14 NWLR part 1321 page 540 and further contended that the trial Court was biased by reason of the fact that it ordered for the payment within 72 hours, regardless of the Appellants’ constitutional right of appeal, learned counsel referred the Court to POLLYN V MIEJENE (2012) 14 NWLR part 1321 page 567.

It is submitted in response that the way learned counsel went about accusing the trial Court of bias is unbecoming of a senior counsel simply because he lost out and should not be condoned by this Court.

That the order of the Court to give value to the cheques already issued does not in any way stifle the appellants’ right to appeal, as the trial Court was exercising its discretion.

Learned counsel further submits that the Court did not order the doing of an impossibility, after all, the appellants have capacity to pay the judgment debt that is why they issued the cheques to the chief registrar in the first place.

That the Appellants ran foul of two requirements by not putting appearance to show cause to dispute the liability and paying out money to the appellant even after the service of the order nisi was served on them without leave of Court.

RESOLUTION OF ISSUE FOUR: 
First, as rightly submitted for the 1st respondent, learned silk for the appellants should know better. He is least expected, by his position in the bar, and indeed society, to be the epitome of knowledge, manners and good culture. The allegation of bias, and the way and manner it was made is repulsive. He ought not to, no matter the level of displeasure or disaffection he feels, employ intemperate language to a judge. It is unbecoming to do so. I say no more.

Issue three takes care of most of the issues raised under this head. Be that as it may, it is important to point out that the appellants were the ones, who in the first place, refused or neglected to respond when issued with the order nisi. One could have expected a serious person who has a genuine dispute with the figures in issues, to file an affidavit to show cause, at the very least, on receipt of the order nisi. No. The appellants did not do that. Instead, they waited until the order nisi was made absolute to rush to Court with an application to set aside the enforcement with an affidavit to show cause to boot. To crown it all, in a very disingenuous way, the appellants issued three separate manager’s cheques, in satisfaction of the judgment debt, then made a complete summersault, to refuse to give value to the cheques in issue.

How could the trial Court not be expected to vent its displeasure at this serious effort at perverting justice? How could the trial Court’s efforts be termed ‘bias’ or ‘descending to the arena’? that in the considered opinion of this Court is the most uncharitable thing to do, to say the least.

Court orders should not be allowed to be disobeyed with impunity; allowing that would lead not only to anarchy but bring disrespect to the administration of justice as a whole. The finding and indeed the conclusion of the trial Court is clearly in order, in the circumstances, when it held: 
“the Court having dismissed the application to stop the payment of the cheques to the judgment creditor, the 2nd applicant is to effect payment of the said three manager’s cheques, by crediting the account of the 3rd respondent with the value on the face of the cheques being the sum of N21,386,500 only, for onward payment to the judgment creditor within 72 hours… “

The urgency in the order of the Court is clearly informed by the appellants’ determined effort to pervert its efforts. The question of compelling the Appellants to do the impossible does not arise because the appellants have all through shown, and indeed exhibited or even demonstrated their capacity to pay the judgment sum. The issuance of three manager’s cheques to the chief registrar in the amount of the judgment sum is a clear demonstration of that capacity. To turn around and say they are being compelled to pay what they could not, is again an effort to thwart the efforts of the trial Court in enthroning justice over mischief.

It is surprising that the 1st Appellant who neglected to appear to dispute liability for the amount, when the order nisi was issued is screaming about denial of fair hearing, coming out only belatedly after the order nisi was made absolute, with an application to set aside the order.

The right to fair hearing is not absolute. The right to fair hearing postulates that it is the duty of a Court to create a conducive environment and atmosphere for a party to enjoy his right to fair hearing, but it does not say that it is part of the duty of the Court to make sure that the party takes advantage of the atmosphere or environment so created to exercise his right to fair hearing. It is not part of the business of a Court to compel a party to exercise his right to fair hearing. Where a party fails, refuses or neglects to take advantage of or utilize the environment created by a Court to exercise his right of fair hearing, he cannot turn around to complain of lack of fair hearing. See DANTATA VS MOHAMMED (2012) 8 NWLR (PT 1302) 366, NATIONAL FILMS & VIDEO CENSORS BOARD VS ADEGBOYEGA (2012) 10 NWLR (PT 1307) 45, EZECHUKWU VS ONWUKA (2016) LPELR-26055(SC), EZE VS FEDERAL REPUBLIC OF NIGERIA (2017) LPELR – 42097(SC) AND DARMA VS ECO BANK PLC (2017) LPELR-41663(SC).
The lower Court gave the Appellants every opportunity to present their case, but they failed to utilize the opportunities. They treated the orders of the lower Court nisi with levity, and after exhibiting all these behaviors in the lower Court, the Appellants have approached this Court to complain of lack of fair hearing. The doctrine of fair hearing is not a “one-way traffic concept” for the benefit of the party who first parrots it. It is not an abstract term available to a party at all times and in all circumstances, even when the party has displayed un-seriousness and nonchalance. It means fairness to all the parties and fairness to the Court. See OKOTCHA VS HERWA LTD (2000) 15 NWLR (PT 690) 249 AT 258 G-H AND NEWSWATCH COMMUNICATION LTD VS ATTA (2006) FWLR (PT 318) 580 AT 600-601.

It is for these reasons that I now resolve this issue in favour of the 1st Respondent against the Appellant.

Having resolved all the four issues that call for determination in favour of the 1st Respondent against the Appellant, the appeal fails for lack of merit, and it is accordingly dismissed, judgment of the trial High Court of the Federal Capital Territory, Abuja, delivered on the 27th of March, 2018 by Hon. Justice A. S. Adepoju is hereby affirmed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the benefit of reading in advance the draft of the judgment delivered by my learned brother, Mohammed Mustapha, JCA.

My learned brother had comprehensively considered the issues raised for determination in this appeal. Having studied the record of appeal, and the submissions of counsel in their briefs of arguments, I am in agreement with my learned brother that this appeal has no merit. It is hereby dismissed. I abide by the consequential order(s) made therein.

BATURE ISAH GAFAI, J.C.A.: I have had a preview of the judgment delivered by my learned brother Mustapha, JCA. I am in full agreement with the reasonings expressed therein and the conclusion he reached that the appeal is unmeritorious.

In my humble view, the Appellants’ Motions filed before the lower Court are in reality meant only to defeat the judgment creditor’s due entitlement through the Court process. It is very surprising that the Appellants who saw nothing wrong in the lower Court’s Order Absolute made against them on the 20th of July, 2017 because they never disputed the debt by filing an affidavit to show cause should be before this Court in this Appeal seeking that those orders be set aside. Indeed, the lower Court had no option than to or proceed in the manner sought by the judgment creditor.

For the fuller reasons expressed in the lead Judgment, I too dismiss the appeal.

Appearances:

G. Ofodile Okafor, SAN, with him, E. C. Ike, Esq. and I. J. Michael, Esq. For Appellant(s)

Adetila Olulenu, Esq. – for 1st Respondent For Respondent(s)