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UNITED BANK FOR AFRICA PLC v. IBRAHIM MOMOH & ORS (2019)

UNITED BANK FOR AFRICA PLC v. IBRAHIM MOMOH & ORS

(2019)LCN/13583(CA)

In The Court of Appeal of Nigeria

On Thursday, the 27th day of June, 2019

CA/J/81/2017

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC – Appellant(s)

AND

1. IBRAHIM MOMOH

2. FAYWAN L. FAYWANG

3. ISAAC AMOTO MOMOH

4. AMODU GABRIEL PAUL

5. DAN HASSAN IDOWU

6. SIKIRA IBRAHIM

7. MERCY MOMOH

8. IBRAHIM ABDULLAHI

9. ONOLOWO PAUL

OGUNDELE

10. GARBA ABDULLAHI

(For themselves and on behalf of 530 other investors)

AND

1. OYEINTEKE GLOBAL NETWORK NIG. LTD

2. KIME ENGOZU – Respondent(s)

RATIO

THE OBJECT OF THE COURT IS TO DECIDE THE RIGHTS OF THE PARTIES BEFORE IT

Now, I think it is a well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for the mistakes which they make in the conduct of their case. I know of no kind of error or mistake which, if not fraudulent. The Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendments as a matter of favour or grace.. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as such a matter of right on his part to have it corrected, if it can be done without injustice. Thesiger, L.J., made the same point in Collins v. Vestry of Paddington (1880) 5 QBD 368 @ 381 when he said that: Blunders must take place from time to time, and it is unjust to add that because blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.? It is the same point that was also made by Belgore, J.S.C. (later CJN) in Engineering Enterprise Contractors Co. of Nigeria v. A.G. Kaduna State (1987) 1 NSCC 601 @ 633 when His Lordship also said that:The function of the Court is to do justice between parties by settling their dispute. Anything short of that defeats the spirit of the law and the Constitution. The Court has the power to correct even mistakes in affidavits where the error is apparent as was in this case: see Adejumo & Ors v. Governor of Lagos State (1970) NSCC 134 @ 136. PER UGO, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal questions the correctness of the 27th May Ruling of the High of Plateau State delivered by Damulak, C.J. (now Rtd.) granting a Garnishee Order Absolute attaching the funds of the 2nd set of Respondents with Appellant in satisfaction of their ?355,740,000.00 (Three Hundred and Fifty-Five Million, Seven Hundred and Forty Thousand Naira) judgment debt earlier entered by the same Court on 11/3/2016 in Suit No. PLD/J228/2015 against 2nd set of respondents in favour of 1st set respondents.

It is important to mention that the lower Court (Damulak, C.J.) in the same 27th May ruling first dismissed an application by 2nd set respondents to set aside his said judgment on the grounds that they were not served processes that led to it; that they only became aware of the pendency of that proceeding when the Garnishee Order Nisi for attachment of their funds was served on them.

Like appellants herein, 2nd set of respondents were also dissatisfied with the decision of the lower Court dismissing their said application and appealed to this Court. Their appeal was Appeal

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No. CA/J/1/2018: Oyeinteke Global Network Ltd and Kime Engozu v. Ibrahim Momoh & Others. All the parties to this appeal were also parties to that appeal. Judgment in that appeal has been since delivered by this Court (per Abiru, Hassan and Oniyangi, JJ.C.A) on 12th April 2019 wherein this Court upheld 2nd set Respondents? appeal and their argument that they were not served processes in the said case. My inquiries in the Registry of this Court revealed that no appeal has been entered against that judgment so far, even as counsel to appellant during the argument of the appeal cited that judgment in support of his case and proclaimed his intention to rely on it.

In view of all that, this appeal may have truly become academic, for if there is no longer any judgment debt to be attached by way of Garnishee Order absolute, there cannot be any sensible talk of whether the Garnishee Order Absolute the subject of this appeal was properly made by the lower Court, as one cannot place something on nothing. In Attorney General of the Federation v. ANPP (2003) 18 NWLR (PT 851) 182 @ 215 (S.C.) it was said that:

?In a case on appeal the appeal may

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become academic at the time it is due for hearing even though originally there was a living issue between the parties. And I think the fact that the decision may help one of the parties to redirect its affairs in an entirely or probably anticipated situation is irrelevant.?

That dictum is of the final Court of the land whose decisions are not appealable, unlike this Court which is only an intermediate Court of appeal. I am therefore obliged to undertake the boring task of determining this appeal for whatever it is worth since appellant has not withdrawn it and 1st set respondents have not also openly thrown in the towel as I thought they would do since the judgment in CA/J/1/2018 was delivered by this Court even before this appeal was argued.

In proceeding to determine the appeal on its merits, let me elaborate a little more on what happened at the lower Court. As said already, 1st respondents as judgment creditors sought to attach the funds of the 2nd Respondents with appellant to satisfy their judgment debt. They targeted 2nd Respondents? Account Numbers 1018325245 and Fixed 041211000029 with appellant and obtained a Garnishee order

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Nisi to Show Cause, which they served on the appellant.

Upon receipt of the Order Nisi to Show Cause, appellant filed a seven-paragraph counter affidavit, which it wrongly numbered as six paragraphs, and there averred that whereas there was no fund in 2nd set respondents? Account No. 041211000029 and same was even dormant (for which they also attached the statement of account to buttress their position), Account No. 1018325345 had an interim Order of the Lagos State High Court freezing it at the instance of the Economic and Other Financial Crimes Commission (EFCC). It also filed and adopted before the lower Court a written address along with its said counter-affidavit and there urged that the order should be discharged.

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Unfortunately, the printer?s devil seemed to have descended on the penultimate two paragraphs of their said counter affidavit, for its deponent, one Ugochukwu Okechukwu, a Litigation Secretary of their solicitors, somehow ended up stating the very opposite of their position in paragraphs 1, 2, and 3 and 4 (a), (a), (b), (c), (d), (e), (f), and (g) ( he also duplicated the numbering of paragraph 4 by naming paragraph 5

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also paragraph 4) by deposing at its paragraphs 4 and 5 (see p. 13 of the records) that:

?4. That it will be in the interest of Justice to grant this application.

?5. That the applicant will not be prejudiced if the application is granted.?

Damulak C.J. inferring from these (1) that the application was conceded by appellant and (2) that the interim order of the Lagos High Court freezing Account No. 1018325345 having been made since 12th August 2015 may have abated as at 27th day of May 2016 when he delivered his Ruling on the Order to Show Cause, His Lordship proceeded to make his earlier Order of Garnishee Nisi, Absolute.

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The result of that is this appeal from the appellant. It set out two issues for determination as follows:

1. Whether the learned trial judge was right when he isolated paragraph 4 of the Garnishee/Appellants counter affidavit and read it to mean that the appellant had agreed to grant of the Judgment Creditor/Respondent?s application for an order Absolute.

2. Whether the learned trial judge was right when he held that Exhibit A attached to the affidavit of the appellant to show cause was

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an interim order which must have abated.

1st set of respondents on their part distilled a simple sole issue asking: Whether fact admitted need further proof.

Second set respondents (judgment debtors) did not file any brief of argument.

Appellant on its first issue argued that Damulak, C.J., did not evaluate its affidavit evidence properly, that if he had evaluated it holistically rather than concentrate on paragraphs 4 and 5 he would have seen that it showed cause why the garnishee order nisi should not be made absolute. This is even more so, it submitted, when 1st set respondents did not even file any further affidavit to counter its depositions that Account No. 041211000029 was really empty and dormant while Account No. 1018325345 was frozen by Order of Court so 2nd set respondents had no funds with them to attach.

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On issue 2, it argued that in the absence of any further affidavit from 1st set respondents to counter their deposition that there was in place an interim order of the Lagos State High Court freezing Account No. 1018325345 of 2nd set Respondents, Damulak C.J. was bound to accept that unchallenged affidavit and not speculate

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that ?it is presumed that the interim order must have abetted (sic: abated).? Evidence that is not challenged is deemed admitted and it is not the duty of the Court to make for parties case which they did not make, Mr. Anyia on its behalf submitted and cited a number of cases. The Court?s decision must be based only upon facts and materials placed before it; that it is not permitted for it to embark on an inquisitorial exercise and make case for parties, it submitted. Counsel argued that Exhibit A (the Interim Order of the Lagos State High Court freezing Account No. 1018325345 of 2nd set Respondents) attached to its counter affidavit showing cause spoke for itself, that if the lower Court had any doubts about its true state, it ought to have called for oral evidence from parties rather than speculate that it must have abated. It described the decision of the lower Court perverse and urged us to intervene and set it aside and allow their appeal.

In response, 1st respondents reproduced paragraphs 4 and 5 of appellant?s counter affidavit earlier reproduced to say that by those two paragraphs it admitted their application so there was

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no need for any further proof, as facts admitted need no proof going by Section 123 of the Evidence Act 2011, so Damulak, C.J., was right in so holding. The further consequence of paragraphs 4 and 5 of appellant?s counter affidavit was that its affidavit was contradictory and conflicting so it did not matter that they did not file any further response to it, as the Court cannot grant them any relief on a conflicting and self-contradictory affidavit, they argued.

On the lower Court?s conclusion that the interim freezing Order of the Lagos State High Court on Account No. 1018325345 must have abated, they argued that the lower Court is obliged by Section 122 of the Evidence Act to take judicial notice of all general customs, rules and principles which have been held to have the force of law in Courts established by the Constitution; that they are also enjoined to take judicial notice of the course of proceedings and all rules and practice in force in any Court established by the Constitution. They also referenced Section 167 of the Evidence Act 2011 which obliges the Court the Court to presume the existence of any fact which it deems likely to

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have happened, regards being had to the common course of natural events and human conduct. From these two provisions, they submitted, it is within the province of the lower Court to presume that the Freezing Order of the Lagos State Court on Account No. 1018325345 being only interim must have abated as it concluded. They finally urged us to resolve appellant?s two issues against it and dismiss the appeal.

I shall adopt appellant?s two issues in determining this appeal. I start from its issue 1 where it asked whether the learned trial judge was right when he isolated paragraphs 4 and 5 of its counter affidavit and read them to mean that it had agreed to the grant of 1st set Respondents? application for a Garnishee Order Absolute. Here I am inclined to agree with the appellant that the lower Court was not correct in confining itself to the obvious error in wrongly-numbered paragraphs 4 and 5 (they ought to be paragraphs 5 and 6) of appellant?s counter affidavit to Show Cause in holding that it conceded the garnishee application of first set respondents despite clear depositions to the contrary in paragraphs 1 to original paragraph 4

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of their same counter affidavit and other relevant documents annexed, including statements of accounts of the two accounts, all showing that appellant was opposed to the said garnishee application. In original paragraph 4 of the said counter affidavit, appellant through same Ugochukwu Okechukwu deposed as follows:

4 That I was informed by L.E Anyia Esq., counsel to the garnishee on 15th day of April 2016 at about 12.00pm at Anyia & Co. which information I verily believe as follows:

a. That consequent to the order of this Honourable Court made on the 23rd day of March 2016, the applicants filed a motion praying the Court to compel the garnishee to Show Cause why an order absolute should not be made against them.

b. That the UBA account No. 1018325345 sought to be garnished by an order of this Honourable Court made on the 23rd day of March 2016 in favour of the judgment debtors/creditors counsel has already been frozen by a Lagos High Court in Suit No. LD/2144MFHR/15.

c. That the UBA Fixed Account with Account No 041211000029 has no money in it as it is a zero account and currently dormant because the judgment debtors have not been

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servicing the said account with money.

d. That flowing from the above, the Garnishee has its hands tied in the circumstance as no withdrawal can be made from the UBA Account No. 041211000029 since there is already an order against same made by the Lagos State High Court.

e. That the said Order of the Lagos State High Court is hereby attached as exhibit A.

f. That the said UBA statement of account which is a fixed UBA Account with No. 041211000029 is hereby pleaded and marked Exhibit B.

It is after these depositions that the same deponent went on to pray the Court in paragraphs 4 and 5 of the same affidavit that:

?4. That it will be in the interest of Justice to grant this application.

?5. That the applicant will not be prejudiced by if the application is granted.?

In the first place, these depositions are not facts but prayers and legal arguments and conclusions respectively and offend Section 115 (1) and (2) of the Evidence Act stating that:

115 (1) Every affidavit used in the Court shall contain only statement of facts or and circumstances to which the witness deposes either of his own knowledge or

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from information which he believes to be true.?

(2) An affidavit shall not contain extraneous matters, by way of objection, prayer or legal argument or conclusions.

The said two paragraphs therefore ought to have been even struck out by the lower Court (see Military Governor of Lagos State v. Ojukwu (1986) 6 ANLR 233 @ 250; Orji v. Zaria Industries Ltd (1992) 1 NWLR (PT 216) 124 @ 151 E-G; Oduwole v. Famakinwa (1990) 4 NWLR (PT 143) 239 @ 247; Annotation of the Nigerian Evidence Act 1990, by Sotari F. Oruwari, p. 142) or at best discountenanced. In NLNGL v. ADIC Ltd (1995) 8 NWLR (PT 416) 677 701 -702 it was said (Uwaifo, J.C.A., as he then was) that:

?Affidavits for use in Court should contain only a statement of facts and circumstances. Prayers and legal arguments are better pressed by counsel in Court while conclusions should be left for the Court to reach.?

At any rate, even assuming, though without conceding at all, that the said depositions were in order, the counter affidavit of appellant read as a whole shows without any doubt that a clerical error was made in the said two paragraphs by the deponent, which

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the lower Court as a Court of justice ought to have drawn the attention of the appellant to for possible correction and decide the application on its merits. It should not have decided the application artificially as it seems to have done, after all the Court?s primary duty is to do substantial justice between parties. Blunders of this sort are bound to occur from time to time so long as it is fallible human beings that draft documents and also preside over Courts. It is also in recognition of this truism that the Rules of the lower Court made provisions empowering His Lordship and his brother Judges to correct typographical and clerical errors in their judgments and orders even after delivery, without the need for appeal, whenever such occur as they are bound to from time to time. His Lordship ought to have also realized that what was in issue before him was the demand of payment by appellant to 1st respondents of a whopping sum of ?355,740,000.00, which amount was not even directly owed by appellant to 1st set of respondents. Such an important issue ought not to have been trivialized and decided on account only of a clerical error by

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appellant?s lawyer?s secretary in two incidentally inadmissible paragraphs of his affidavit for appellants. Here I find relevant the dictum of Idigbe, J.S.C., in Okeowo & Ors v. Migliore & Ors. (1979) N.S.C.C. 210@ p. 238-239, where His Lordship citing the often quoted dictum of Bowen L.J. in Cropper v. Smith (1884) 26 Q.B.D. 700 at 71, said:

?Learned counsel for the appellant contends, and I agree with him that the failure of learned counsel for the respondents to apply in the Court below and even in the Court of Appeal for leave to amend the prayer in the summons is in bad taste. As, however, has been said Courts ?do not exist for the purpose of punishing bad taste? (Per Bowen L.J. in Cropper v. Smith (1884) 26 Q.B.D. 700 at 712). The duty of the Courts is to determine the real issues in controversy as they appear on the evidence, although the conduct of the case on behalf of the litigant may have been slipshod or even cavalier. The locus classicus on the issue is to be found in the statement of Bowen L.J. in Copper v. Smith (1884) 26 Q.B.D. at 710 and 711 when he observed:-

?Now, I think it is a

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well-established principle that the object of Courts is to decide the rights of the parties, and not to punish them for the mistakes which they make in the conduct of their case. I know of no kind of error or mistake which, if not fraudulent. The Court ought not to correct, if it can be done without injustice to the other party. Courts do not exist for the sake of discipline but for the sake of deciding matters in controversy and I do not regard such amendments as a matter of favour or grace.. It seems to me that as soon as it appears that the way in which a party has framed his case will not lead to a decision of the real matter in controversy, it is as such a matter of right on his part to have it corrected, if it can be done without injustice

Thesiger, L.J., made the same point in Collins v. Vestry of Paddington (1880) 5 QBD 368 @ 381 when he said that:

?Blunders must take place from time to time, and it is unjust to add that because blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute

15

between him and his adversary determined upon the merits. All cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.? It is the same point that was also made by Belgore, J.S.C. (later CJN) in Engineering Enterprise Contractors Co. of Nigeria v. A.G. Kaduna State (1987) 1 NSCC 601 @ 633 when His Lordship also said that:

?The function of the Court is to do justice between parties by settling their dispute. Anything short of that defeats the spirit of the law and the Constitution.?

The Court has the power to correct even mistakes in affidavits where the error is apparent as was in this case: see Adejumo & Ors v. Governor of Lagos State (1970) NSCC 134 @ 136.

I note, too, that appellant, in the written address its counsel filed and adopted in Court in support of that same counter-affidavit, was very clear about its opposition to the Garnishee order absolute sought by 1st set respondents when it stated there that:

?We humbly submit that the counter affidavit has merit and we humbly urge your Lordship to grant same and we humbly urge your Lordship to discharge the

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garnishee in this suit.?

The long and short of it is that I find myself unable to support the learned trial judge?s decision that appellant conceded to the garnishee application. In the event I resolve issue 1 in favour of appellant.

Issue 2, concerning the lower Court?s treatment of the interim order of the Lagos State High Court freezing Account No. 1018325345 does not fare any better in my opinion. The lower Court, I agree with appellant, speculated in inferring lapse of the freezing Order of the Lagos State High Court in Exhibit A as it affects Account No. 1018325345 of 2nd set respondents with appellant. His Lordship ought to have realized that the interim order of the Lagos State High Court in Exhibit A was not the common type of orders of interim injunction but rather a special Statutory Order of Preservation made by the Court at the instance of the Economic and Financial Crimes Commission pursuant to Section 34 of the Economic and Financial Crimes Commission (Establishment etc) Act, Cap E1, Laws of the Federation of Nigeria 2004. Such orders do not usually lapse within few days like ordinary common law type orders of

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injunction obtained ex parte. It was therefore incumbent on the lower Court to make further inquiries to be sure that the said freezing order had really abated before making its Order of Garnishee Absolute attaching that account. For if it is true that the said Freezing order of EFCC was still in force, it will mean that appellant was not indebted to 2nd set respondent within the meaning of Section 83 of the Sheriffs and Civil Process Act, in which case the lower Court by its Garnishee Order Absolute was practically compelling appellant to pay 2nd respondents? judgment debt of ?355,740,000.00 with its own funds. Such is not the intendment nor within the contemplation of Section 83 of the Sheriffs and Civil Process Act. In the event, I also resolve this issue too in favour of appellant.

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In the result, the appeal succeeds and the Garnishee Order Absolute of 27th May 2016 of the High of Plateau State made by Damulak, C.J. (now rtd.) attaching 2nd Respondents? Account Numbers 1018325245 and Fixed 041211000029 with appellant in satisfaction of their (2nd Respondents?) judgment debt of ?355,740,000.00 to 1st set respondents in Suit No.

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PLD/J228/2015 is hereby set aside.

Parties are to bear their costs.

ADZIRA GANA MSHELIA, J.C.A.: I have had the advantage of reading in draft the Judgment of my learned brother Ugo, J.C.A just delivered. I agree with his reasoning and conclusion. I abide by the consequential orders made in the leading Judgment including order as to costs.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.

I agree with his reasoning contained therein and the conclusion arrived thereat. His Lordship has resolved all the issues submitted for determination of this Appeal with utmost diligence hence I have nothing useful to add other than to also conclude that the Appeal succeed and in result allowed.

?I abide by the consequential orders contained therein including that for cost.

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Appearances:

L. E. Anyia Esq., (with him, K. M. Olaoye Esq)For Appellant(s)

E.K. Madueke Esq., for S.A. Oguntuyi Esq. for 1st set Respondents.

I.B. Ahmad Esq. for 2nd Set Respondents.

For Respondent(s)

Appearances

L. E. Anyia Esq., (with him, K. M. Olaoye Esq)For Appellant

AND

E.K. Madueke Esq., for S.A. Oguntuyi Esq. for 1st set Respondents.

I.B. Ahmad Esq. for 2nd Set Respondents.For Respondent