UBA PLC v. UCHE & ORS
(2022)LCN/16533(CA)
In the Court of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, February 25, 2022
CA/A/869/2018
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Between
UNITED BANK FOR AFRICA PLC APPELANT(S)
And
1. ENGR. DAN UCHE (Suing For Himself And On Behalf Of The Obieze Family Of Umueze Omagbu Obula Of Umuaka Isuochi) 2. THE COMMISSIONER OF POLICE, FCT 3. THE INSPECTOR GENERAL OF POLICE 4. ATTORNEY GENERAL OF THE FEDERATION RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF JURISDICTION
Jurisdiction is the lifeblood of any adjudication. It is the foundation of every cause or matter before a Court of law. It is a matter of strict law donated by the Constitution and Statutes. Jurisdiction can also be described as the authority of a Court to entertain a matter brought before it. See: SHITTA-BEY V. A.G. FEDERATION & ANOR. (1998) 10 NWLR (PT. 570) 392: ARIBISALA ANOR. V. OGUNYEMI & ORS. (2005) 6 NWLR (PT 921) 212: UTIH V. ONOYIVWE & ORS. (1991) 1 NWLR (PT. 166) 166: UMANAH V. ATTAH (2006) 17 NWLR (PT. 1009) 503; OLAYORI MUYIDEEN, ESQ. V. NIGERIAN BAR ASSOCIATION & ANOR (2021) LPELR-55885(SC); ALL PROGRESSIVES CONGRESS & ORS V. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337 (SC). PER ONYEMENAM, J.C.A
THE POSITION OF LAW ON APPLICATION FOR GARNISHEE PROCEEDINGS
Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the Judgment Creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the Judgment Creditor. See: UNION BANK OF NIGERIA PLC V. BONEY MARCUS IND. LIMITED & ORS (2005) LPELR-3394(SC); UNION BANK OF NIGERIA PLC V. BONEY MARCUS INDUSTRIES LTD & ORS (2005) 13 NWLR (PT. 943) 654, CHOICE INVESTMENTS LTD V. JEROMNIMON (MIDLAND BANK LTD. GARNISHEE) (1981) 1 ALL ER 225 AT 328, GUARANTY TRUST BANK PLC V. INNOSON NIG. LTD (2017) LPELR-42368 (SC); JENKINS DUVIE GIANE GWEDE V. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC).
By the order nisi, the third party i.e. the garnishee is given an opportunity to tell the Court, in the enforcement or garnishee proceedings, why the order should not be made absolute by directing him to pay the judgment debt or part thereof to the Judgment Creditor. In other words, garnishee order nisi affords the third party (the garnishee) an opportunity to explain or give his reason to the Court why he should not be directed to bear the burden of paying the judgment debt (on behalf of the judgment debtor) to the Judgment Creditor. See: UNION BANK OF NIGERIA PLC. V. BONEY MARCUS INDUSTRIES LTD (2005) ALL FWLR (PT. 278) 1037, (2005) 13 NWLR (PT. 943) 654 AT 666; EMMANUEL OBOH & ANOR V. THE NIGERIA FOOTBALL LEAGUE LIMITED & ORS (2020) LPELR-55520(SC). PER ONYEMENAM, J.C.A.
WHETHER OR NOT IT IS A PLAINTIFF’S CLAIM THAT DETERMINES JURISDICTION
The law is settled that it is the Plaintiffs claims that determine jurisdiction; that is to say, it is the claim before the Court that has to be looked at to ascertain whether it comes within the jurisdiction conferred on it. See: ELELU-HABEEB V. A.G. FED.(2012) 13 NWLR (PT. 1318) 423 SC; HUSSAINI ISA ZAKIRAI V. SALISU DAN AZUMI MUHAMMAD & ORS (2017) LPELR-42349 (SC); THE ATTORNEY-GENERAL OF THE FEDERATION V. THE ATTORNEY-GENERAL OF LAGOS STATE (2017) LPELR-42769 (SC); ISAH V. INEC (2016) 18 NWLR (PT. 1544) 175; GOVERNOR OF KWARA STATE V. LAFIAGI, EGBUONU V. BRTC (1997) 12 NWLR (PT. 531) 29; NIGERIA PORTS AUTHORITY V. AMINU IBRAHIM AND COMPANY & ANOR (2018) LPELR-44464 (SC). PER ONYEMENAM, J.C.A.
THE BURDEN OF PROOF IN CIVIL CASES
The law is long settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist. See: SECTIONS 134 (1) AND 135 OF THE EVIDENCE ACT, 1990 LFN(now SECTIONS 131 (1) AND 132 OF THE EVIDENCE ACT, 2011. See also: SHARING CROSS EDUCATIONAL SERVICES LIMITED V. UMARU ADAMU ENTERPRISES LIMITED & ORS (2020) LPELR-49567(SC); OLASUNKANMI GREG AGBABIAKA V. FIRST BANK OF NIGERIA PLC(2019) LPELR-48125 (SC); DR. SAMPSON UCHECHUKWU OGAH V. DR. OKEZIE VICTOR IKPEAZU & ORS (2017) LPELR-42372(SC). PER ONYEMENAM, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF CAN SHIFT FROM THE PLAINTIFF TO THE DEFENDANT
In civil cases just like the case at hand, the burden of proof is not static; while the burden of proof initially lies with the Plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift the burden from the plaintiff to the Defendant and vice versa. See: DAVID ITAUMA V. FRIDAY JACKSON APE-IME (2000) LPELR-1557 (SC); SECTIONS 131-133 OF THE EVIDENCE ACT, 2011; CENTRAL BANK OF NIGERIA & ANOR V. OLAYATO ARIBO (2017) LPELR-47932 (SC); BULET INTERNATIONAL NIGERIA LIMITED & ANOR V. DR. MRS. OMONIKE OLANIYI & ANOR (2017) LPELR-42475 (SC); APOSTLE PETER EKWEOZOR & ORS V. THE REGISTERED TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2020) LPELR-49568 (SC). PER ONYEMENAM, J.C.A.
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): The Appellant initiated this appeal against the decision of the Federal High Court, Abuja, contained in the ruling of Motion NO: FCT/HC/ABJ/CS/411/2012; delivered by A. F. A Ademola J. (as he then was) on 17th March, 2016.
The brief fact of the case is that one Mr. Rufus Obiezie was shot dead unlawfully by a Nigerian Police officer at Nyanya market Abuja; the trial Court found the 2nd to 4th Respondents liable and entered judgment in favour of the 1st Respondent on 1st July, 2014 against the 2nd to 4th Respondents.
The trial Court awarded the sum of N70,000,000.00 (Seventy million Naira) only and costs of N50,000.00 (Fifty thousand Naira) only, in favour of the Respondents against the 2nd to 4th Respondents.
The 1st Respondent initiated a garnishee proceeding wherein he filed a Motion Ex-parte and prayed the Court for:
“A Garnishee Order Nisi attaching monies in 1st Garnishee bank/Appellant, account No: 1005514590, 1015563155, 2036870847, 2023097252 and 1014828604 and; 2nd Garnishee/SKYE BANK PLC: Bank account No: 1770544221 And; 3rd Garnishee bank account No: 2015950936, 2017655572, 2015950963 belonging to the 1st and 2nd Judgment debtors; that is 2nd and 3rd Respondents in whatever name called jointly or separately or any other account with Garnishee banks.”
The trial Court granted the above order nisi, and made the Order absolute as follows:
“Accordingly, the nisi Orders of this Court are hereby made absolute in the judgment debt due since July, 2014 with N100,000.00 costs to be paid from U.B.A PLC. Account No: 1016482974 or U.B.A Account No: 1001520687 forthwith.”
On her own, the Appellant contended that the above accounts which the trial Court ordered the judgment sum to be paid from do not belong to the 2nd and 3rd Respondents; the Appellant added that the said accounts were not part of the accounts listed in the Motion for Order Nisi filed by the Respondent and therefore the trial Court lacked the jurisdiction to make the Order absolute on the said accounts.
The Appellant was dissatisfied with the decision of the trial Court and has approached this Court by an Amended Notice of appeal filed on 29th October, 2018 and deemed properly filed and served on 14th October, 2021. Counsel on both sides filed relevant processes as required by the rules of the Court and the appeal was heard on 6th December, 2021.
G.O. OFODILE OKAFOR, SAN, with E.C IKE Esq., I.J. MICHAEL Esq., PEACE OFODILE OKAFOR Esq., appeared for the Appellant, adopted and relied on the Appellant’s brief of argument filed on 29th October, 2018; but deemed properly filed and served on 14th October, 2021 in urging the Court to allow the appeal.
KEVIN EMEKA OKORO ESQ., appeared for the 1st Respondent; adopted and relied on the 1st Respondent’s brief of argument filed on 25th November, 2021 in urging the Court to dismiss the Appeal.
IDRIS ABUBAKAR ESQ., appeared for the 2nd to 4th Respondents; adopted and relied on the 2nd, 3rd and 4th Respondents’ brief of argument filed on November, 2020 but deemed properly filed and served on 14th October 2021 in urging the Court to allow the appeal.
In the Appellant’s brief of argument settled by G. Ofodile Okafor SAN, the Appellant formulated 3 issues for determination as follows:
1. Whether the trial Court has jurisdiction to make Order Absolute in relation to account not covered by the Order Nisi and when the attached account does not belong to the judgment debtors.
2. Whether the Order Absolute was properly made notwithstanding affidavits to show cause and without reference to Exhibits A & B.
3. Whether it was proper for the trial Judge to prefer oral as against documentary evidence as to the ownership of the Accounts in question.
Kevin Emeka Okoro Esq., in the Respondent’s brief of argument adopted the Appellant’s issues for determination.
Idris Abubakar Esq., in the 2nd, 3rd and Respondents’ brief of argument submitted a sole issue for determination as follows:
Whether it was apposite for the Court below to make Order Absolute on Bank Accounts belonging to persons different from the Judgment Debtors, and not earlier affected or even captured in its Order nisi.
I have read carefully the issues formulated by the parties respectively. The Appellant’s 3 issues cover his grouse and will be adequate in the determination of this appeal; however the Appellant’s issues are interwoven and I chose to summarize the issues as follows: Issues 1 and 2 as issue 1 thus:
Whether in the circumstance of this case, the trial Court had the jurisdiction to make Order absolute.
Issue 3 will be treated as issue 2 thus:
Whether it was proper for the trial Judge to prefer oral as against documentary evidence as to the ownership of the accounts in question.
However I shall resolve the 2 issues together.
SUBMISSIONS ON ISSUE 1
Whether in the circumstance of this case, the trial Court had the jurisdiction to make Order absolute.
The learned senior counsel in the Appellant’s brief of argument contended that Exhibit A which is a UBA PLC account No. 1001520687 and Exhibit B UBA account No. 1016482974 belong to the Ministry of Police Affairs. He went on to say that the Ministry of Police Affairs is a distinct legal entity from the Inspector General of Police or the Commissioner of Police for Federal Capital Territory. He referred the Court to Section 124 (1) (a) & (b) of the Evidence Act, 2011 as amended in submitting that the trial Court has no jurisdiction to make Order Absolute in relation to accounts not covered by the Order Nisi because, generally Order Absolute is an order that flows from Order Nisi and ought not to be different from the Order Nisi.
The learned silk submitted that a Court cannot go outside the terms of the motion, as it is bound by the terms or prayers in the motion filed. He cited the case of: EZENWAKA V. OKON (2017) 1 NWLR pt. 1547 CA 386 PAGES 422-423. He added that granting a relief not specifically claimed is not an issue which depends on the discretionary powers of a trial Court. He relied on the cases of: AGIP (NIG) LTD V. AGIP PETROLI INT’L & ORS (2010) 5 NWLR (PT. 1187) 346 AT PAGE 427 PARAS B-C.
The learned senior counsel submitted that the reliefs sought by the Respondent on the Motion Ex-parte did not cover accounts Nos: 1001520687 and 1016482974. He further submitted that the trial Court went out of the reliefs to grant reliefs not sought by the parties, which he ought not to have done; therefore the Order Absolute is a nullity. He relied on the case of: UWAK V. SAMPSON (2017) 10 NWLR PT. 1574 491, AT 509 – 510.
The 1st Respondent’s counsel on this issue contended that Exhibit A belongs directly to the 2nd and 3rd Judgment Debtors/Respondents without a name but an address Ministry of Police Affairs, Shehu Shaqari Way, Abuja, while Exhibit B also belongs directly to 2nd and 3rd Judgment debtors/Respondents with the name Inspector General 1 Personnel Account, which address is, Police Affairs, 2A Kofo Abayomi Street, Victoria Island, Lagos. He submitted that the Inspector General of Police and Ministry of Police Affairs are the same and inseparable; that the account of inspector General of Police will either bear Police Affairs office or Ministry of Police Affairs. He relied on Section 147 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended; Section 148 ,Section 215 of the Constitution of the Federal Republic of Nigeria 1999 as amended; Section 124 (1) (a) & (b) of the Evidence Act, 2011.
Chief Okoro submitted that the Court has jurisdiction to make order absolute in relation to accounts covered by the Order Nisi. He went on to say that the Court is bound to make order absolute emanating from the reliefs in the Ex-parte Motion and Order Nisi.
The learned counsel also submitted that the provision of Section 83 of the Sheriff and Civil Process Act does not contemplate account numbers but money owed by the Judgment Debtors in the custody of garnishee bank and by the power under Section 87 of the Sheriff and Civil Process Act, 2004, the trial Court was right to have made the Order Nisi Absolute, after subjecting the Appellant’s witness to trial.
The learned counsel in reply to paragraphs 4.2(a), 4.2(b) and 4.2(c) of Appellant’s Brief submitted that the lower Court exercised his discretion judicially and judiciously in making the Order Nisi Absolute after trial of the issues to determine liability of the Appellant pursuant to Section 87 of the Sheriff and Civil process Act, 2004.
Mr. Abubakar in the 2nd, 3rd, and 4th Respondent’s brief of argument argued in line with the submissions of the Appellant to the effect that it is the Bank Accounts that were affected by the garnishee Order nisi of the learned trial Judge, that can subsequently be slammed with a garnishee Order Absolute of the Court. He referred to the cases of: CENTRAL BANK OF NIGERIA V. KRAUS THOMPSON ORGANISATION LTD (2002) 7 NWLR (Pt. 765) 139; RESTTN V. SEVERO (1933) 1 K.B 47, PLUNKET V. BARCLAYS BANK LIMITED (1936) 2 K.B 107; (1936) 1 ALL E.R 635; HANCORK V. SMITH 41 CH. D 456. He urged the Court to allow the appeal.
SUBMISSIONS ON ISSUE 2
Whether it was proper for the trial Judge to prefer oral as against documentary evidence as to the ownership of the Accounts in question.
The learned senior counsel for the Appellant contended that having regards to the materials placed before the trial Court, the learned trial Jjudge wrongly exercised its discretion by making the Order Nisi Absolute without any regard to Exhibits A & B, which have no connection with and/or do not belong to the 2nd, 3rd and 4th Respondents.
The learned silk submitted that the trial Court was wrong to prefer the oral evidence of the Mr. Armstrong Ogochukwu that account No. 1001520687 belongs to Inspector General of Police to the documentary evidence attached to the affidavit to show cause i.e, Exhibits A and B and made the order Nisi Absolute.
He further submitted that Exhibit A which has the credit balance of N149,751,80.85k; and Exhibit B which also has the credit balance of N14,000,000.00 is a Corporate Holding Account belonging to the Ministry of Police Affairs and do not belong to the 2nd to 4th Respondents. He added that documentary evidence is the best evidence and no oral evidence will be allowed to discredit or contradict the contents of a document. He cited the case of: ESEKHAIGBE V. FRSC (2015) 12 NWLR PT. 1474, 520 AT 534 PARAS. C-D.
The learned senior counsel urged the Court to resolve this issue in favour of the Appellant.
The learned counsel for the 1st Respondent on this issue argued that it was based on refusal of the Appellant’s witness to answer necessary questions asked and blatant denials that left the lower Court with no option than to make the Order Nisi Absolute. He submitted that Section 87 of the Sheriff and Civil Process Act, 2004 empowers the Court to examine and cross-examine the Appellant’s Witness to clarify doubts if any, so that the Court will make independent opinion; that it was based on the evidence before the lower Court that made him to arrive at making the order absolute.
The learned counsel submitted that the Garnishee owes the Court a duty and an obligation to act in utmost good faith and to disclose the true position or status or standing of the Judgment Debtors’ account. This is to enable the Court form an independent opinion as to the liability of the Garnishee to satisfy the judgment debt. He relied on the case of: OCEANIC BANK PIC V. MICHAEL OLADEPO (2013) 8 WRN 157 at 172.
He urged the Court to resolve this issue in favour of the 1st Respondent.
RESOLUTION OF ISSUES 1 AND 2
Jurisdiction is the lifeblood of any adjudication. It is the foundation of every cause or matter before a Court of law. It is a matter of strict law donated by the Constitution and Statutes. Jurisdiction can also be described as the authority of a Court to entertain a matter brought before it. See: SHITTA-BEY V. A.G. FEDERATION & ANOR. (1998) 10 NWLR (PT. 570) 392: ARIBISALA ANOR. V. OGUNYEMI & ORS. (2005) 6 NWLR (PT 921) 212: UTIH V. ONOYIVWE & ORS. (1991) 1 NWLR (PT. 166) 166: UMANAH V. ATTAH (2006) 17 NWLR (PT. 1009) 503; OLAYORI MUYIDEEN, ESQ. V. NIGERIAN BAR ASSOCIATION & ANOR (2021) LPELR-55885(SC); ALL PROGRESSIVES CONGRESS & ORS V. ENUGU STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2021) LPELR-55337 (SC).
The Appellant herein is challenging the jurisdiction of the trial Court to make Order Nisi Absolute on two accounts alleged not to belong to the Judgment Debtors and not listed in the Order Nisi of the Court.
Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the Judgment Creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the Judgment Creditor. See: UNION BANK OF NIGERIA PLC V. BONEY MARCUS IND. LIMITED & ORS (2005) LPELR-3394(SC); UNION BANK OF NIGERIA PLC V. BONEY MARCUS INDUSTRIES LTD & ORS (2005) 13 NWLR (PT. 943) 654, CHOICE INVESTMENTS LTD V. JEROMNIMON (MIDLAND BANK LTD. GARNISHEE) (1981) 1 ALL ER 225 AT 328, GUARANTY TRUST BANK PLC V. INNOSON NIG. LTD (2017) LPELR-42368 (SC); JENKINS DUVIE GIANE GWEDE V. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC).
By the order nisi, the third party i.e. the garnishee is given an opportunity to tell the Court, in the enforcement or garnishee proceedings, why the order should not be made absolute by directing him to pay the judgment debt or part thereof to the Judgment Creditor. In other words, garnishee order nisi affords the third party (the garnishee) an opportunity to explain or give his reason to the Court why he should not be directed to bear the burden of paying the judgment debt (on behalf of the judgment debtor) to the Judgment Creditor. See: UNION BANK OF NIGERIA PLC. V. BONEY MARCUS INDUSTRIES LTD (2005) ALL FWLR (PT. 278) 1037, (2005) 13 NWLR (PT. 943) 654 AT 666; EMMANUEL OBOH & ANOR V. THE NIGERIA FOOTBALL LEAGUE LIMITED & ORS (2020) LPELR-55520(SC).
I have seen from pages 24 to 27 of the records of appeal the garnishee order nisi ordered by the trial Court, upon hearing the 1st Respondent’s Ex-parte Motion filed on 20th April, 2015; wherein the trial Court ordered as follows:
“That a Garnishee Order Nisi is made attaching monies in the 1st Garnishee bank account No: 1005514590, 1015563155, 2036870847, 2023097252 and 1014828604 and 2nd Garnishee bank account No: 1770544221 and 3rd Garnishee bank No: 2015950936, 2017655572, 2015950963 belonging to the 1st and 2nd Judgment debtors in whatever name called jointly or separately or any other account with Garnishee banks.” (underlined emphasis is mine).
The main grouse of the Appellant is that the 2 accounts that is Exhibits A and B which the trial Court made the Order Nisi Absolute, do not belong to the judgment debtor and is not among the accounts listed above and therefore the trial Court lacks the jurisdiction to make the Order Nisi Absolute.
Let me first address the argument of the Appellant that Exhibits A and B were not listed in the order nisi made by the trial Court and cannot be made absolute.
From the entire records of appeal, it is correct that Exhibits A and B were not listed in the Ex-parte motion of the 1st Respondent as provided above. The law is settled that it is the Plaintiffs claims that determine jurisdiction; that is to say, it is the claim before the Court that has to be looked at to ascertain whether it comes within the jurisdiction conferred on it. See: ELELU-HABEEB V. A.G. FED.(2012) 13 NWLR (PT. 1318) 423 SC; HUSSAINI ISA ZAKIRAI V. SALISU DAN AZUMI MUHAMMAD & ORS (2017) LPELR-42349 (SC); THE ATTORNEY-GENERAL OF THE FEDERATION V. THE ATTORNEY-GENERAL OF LAGOS STATE (2017) LPELR-42769 (SC); ISAH V. INEC (2016) 18 NWLR (PT. 1544) 175; GOVERNOR OF KWARA STATE V. LAFIAGI, EGBUONU V. BRTC (1997) 12 NWLR (PT. 531) 29; NIGERIA PORTS AUTHORITY V. AMINU IBRAHIM AND COMPANY & ANOR (2018) LPELR-44464 (SC).
I will be correct to say that the 1st Respondent’s Ex-parte Motion for Garnishee Order nisi is an originating process which confers jurisdiction on the trial Court. The law has been established to the effect that it does not lie within the power of a Court to grant a relief not claimed by a party in his pleadings. See: EDEBIRI V. EDEBIRI (1997) 49 LRCN 919 AT 940; ODUKWE V. OGUNBIYI (1998) 6 SCNJ 102 AND EYO OGBONI V. OJA OJAH (1996) 6 SCNJ 140. What I am trying to say in essence is that a relief which is inconsistent with the claim should not be granted because the Court should not be seen as a charitable institution. See: SULE EYIGEBE V. MUSA (2013) LPELR-20522(SC).
I have closely read the Ex-parte motion of the 1st Respondent earlier reproduced, which asked for a Garnishee Order Nisi to be made attaching monies in listed accounts and in whatever name called jointly or separately or any other account with Garnishee banks. This means that the Order nisi applied for by the 1st Respondent covers all the judgment debtor’s account with the Appellant; whether listed or not, I shall delve to the next leg of the Appellant’s argument to the effect that the two accounts attached as Exhibits A and B do not belong to the judgment debtors.
The law is long settled that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those empirical facts exist. See: SECTIONS 134 (1) AND 135 OF THE EVIDENCE ACT, 1990 LFN(now SECTIONS 131 (1) AND 132 OF THE EVIDENCE ACT, 2011. See also: SHARING CROSS EDUCATIONAL SERVICES LIMITED V. UMARU ADAMU ENTERPRISES LIMITED & ORS (2020) LPELR-49567(SC); OLASUNKANMI GREG AGBABIAKA V. FIRST BANK OF NIGERIA PLC(2019) LPELR-48125 (SC); DR. SAMPSON UCHECHUKWU OGAH V. DR. OKEZIE VICTOR IKPEAZU & ORS (2017) LPELR-42372(SC).
In civil cases just like the case at hand, the burden of proof is not static; while the burden of proof initially lies with the Plaintiff, the proof or rebuttal of issues which arise in the course of proceedings may shift the burden from the plaintiff to the Defendant and vice versa. See: DAVID ITAUMA V. FRIDAY JACKSON APE-IME (2000) LPELR-1557 (SC); SECTIONS 131-133 OF THE EVIDENCE ACT, 2011; CENTRAL BANK OF NIGERIA & ANOR V. OLAYATO ARIBO (2017) LPELR-47932 (SC); BULET INTERNATIONAL NIGERIA LIMITED & ANOR V. DR. MRS. OMONIKE OLANIYI & ANOR (2017) LPELR-42475 (SC); APOSTLE PETER EKWEOZOR & ORS V. THE REGISTERED TRUSTEES OF THE SAVIOURS APOSTOLIC CHURCH OF NIGERIA (2020) LPELR-49568 (SC).
The 1st Respondent argued that Exhibits A and B belong to the 2nd and 3rd Respondents and in the proceedings of 3rd March, 2015 as seen at page 106 of the records of appeal; he applied for an Order of the Court for the production of details of Exhibits A and B. The said application was granted without objection. The 1st Respondent by that was deemed to have discharged the burden of proof that Exhibits A and B belong to the 2nd and 3rd Respondents and so; the burden of prove swung to the Appellant to show otherwise.
The Appellant in an attempt to discharge the burden of who owns the accounts in Exhibits A and B filed a further and better affidavit, deposed to by one Armstrong Ogochukwu as seen at pages 79 to 82 of the records of appeal; wherein in paragraph 4 he deposed thus:
“That the 1st Garnishee has filed the Statement of accounts in respect of the following: 1016482974 titled Corporate Holding Account has a balance of N149,751,180.85 as at 16th March, 2016. The copy of the statement of account is here with filed as Exhibit A.
Account No: 1001520687 belongs to Inspector General of Police Personnel Account has a balance of N14,000,000.00 as at 16th March, 2016. The copy of the statement of account is herewith filed as Exhibit B.”
In the proceedings of 17th March, 2016; the Appellant emphasized that Exhibits A and B do not belong to any of the Judgment Debtors. Let me bring to remembrance that, the purpose of the Appellant’s further and better affidavit is to show cause; that is to proffer satisfactory reason why the order nisi should not be made absolute on Exhibits A and B. Exhibit A reads Corporate Holding Account and Federal Ministry of Police Affairs beside it. The Appellant’s explanation to this, is that, the Federal Ministry of Police Affairs is the address of Exhibit A. What would agitate a sound mind is, who is the corporate body that owns Exhibit A with the above address? This question was asked by the trial Court and Armstrong Ogochukwu replied:
“I don’t know” See page 128 of the records of appeal.
When asked by the trial Court who owns Exhibit B, he replied: “Inspector General of Police Personnel Account. ”
The Appellant by this clarification, in my view, failed to satisfactorily show cause why the Order Nisi could not be made absolute on Exhibits A and B.
Contrary to the argument of the learned counsel for the Appellant that the trial Court failed to consider Exhibits A and B, but rather preferred the oral testimony of the witness against documentary evidence; the proceedings of 17th March, 2016; referred to above reveals otherwise. The learned trial Judge to ensure proper evaluation of Exhibits A and B; and to be properly guided on the right Orders to make; had to ask the Appellant’s witness for oral elucidation of the ownership of the said Exhibits, particularly Exhibit A which read Corporate Holding Account and Federal Ministry of Police Affairs beside it. The proceedings of the trial Court in no way was suggestive that the learned trial Judge preferred oral evidence to documentary evidence. The documentary evidence, particularly Exhibit A is ambiguous and therefore requires an explication which was what the trial Court simply did and nothing more. The failure of the Appellant through its witness Armstrong Ogochukwu to prove that Exhibits A and B do not belong to the 2nd and 3rd Respondents points to the absolute fact that the said Exhibits are owned by the 2nd and 3rd Respondents. Having come to this conclusion and for the position I held earlier that the 1st Respondent’s Ex-parte motion for Garnishee Order nisi covers all the Judgment Debtors’ account with the Appellant; I hold that the trial Court has the jurisdiction to make the Order Nisi Absolute on Exhibits A and B.
Consequently, I fail to fault the findings and conclusion of the trial Court on all the issues submitted for determination by the Appellant.
The appeal lacks merit and the same is hereby dismissed. I uphold the decision of the Federal High Court, Abuja, in the ruling of Motion NO: FCT/HC/ABJ/CS/411/2012; delivered on 17th March, 2016. I award the cost of N200,000.00 (Two hundred thousand Naira) only, against the Appellant and in favour of the 1st Respondent.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading in draft, the judgment delivered by my learned brother U. Onyemenam, JCA. I must admit his Lordship has extensively resolved all the issues raised in this appeal. I too dismiss the appeal for lacking in merit and I affirm the ruling of the learned trial Judge of 17th March, 2016 in Motion No.: FHC/ABS/CS/411/2012. I abide by the order as to cost.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, UCHECHUKWU ONYEMENAM, JCA, has availed me a draft copy of the lead judgment just delivered. My lord has comprehensively dealt with all the issues in the appeal. I am in agreement with the reasoning and conclusion reached that the lower Court possess the jurisdictional competence to make the garnishee order nisi absolute with respect to Exhibits A and B.
I would however like to make a brief remark on the 2nd, 3rd and 4th Respondents’ Brief of Argument. In the said Brief, rather than canvass arguments in support of the judgment, the 2nd, 3rd and 4th Respondents’ counsel made submissions in support of the Appellant’s position in the appeal and urged the Court to resolve the appeal in favour of the Appellant. Now, the Apex Court has stated in a plethora of decided authorities that the traditional role of a Respondent to an appeal is to defend the judgment appealed against. If he wants to depart from this role by attacking the said judgment in any way, he is obliged by the Rules to file a cross appeal. See Lafia Local Government vs. The Executive Government Nasarawa State & Ors (2012) LPELR- 20602 (SC); Dangana & Anor vs. Usman & Ors (2012) LPELR- 25012 (SC); Kayili vs. Yilbuk & Ors (2015) LPELR-24323 (SC); Agi vs. PDP & Ors (2016) LPELR-42578 (SC); Cameroon Airlines vs. Otutuizu (2011) LPELR-827 (SC); PDP vs. Oranezi (2017) LPELR-43471 (SC). Where, however, a Respondent to an appeal is satisfied with the judgment appealed against and does not intend to file a cross appeal to attack the judgment, the best thing for him to do is to remain mute and not depart from his traditional role by supporting the Appellant. In the circumstance, the role played by the 2nd, 3rd and 4th Respondents in this appeal is ignoble and arguments canvassed by them in their Brief of Argument amounts to freaky advocacy liable to be discountenanced.
This remark apart, I too dismiss the appeal and affirm the ruling of the lower Court. I abide by the order made as to cost.
Appearances:
G.O. OFODILE OKAFOR, SAN, with him, E.C IKE, I.J. MICHAEL and PEACE OFODILE OKAFOR For Appellant(s)
KEVIN EMEKA OKORO – for 1st Respondent
IDRIS ABUBAKAR – for 2nd – 4th Respondents For Respondent(s)
