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UNITY BANK PLC v. MR. OLARANWAJI OMONIYI ABIKOYE & ORS (2019)

UNITY BANK PLC v. MR. OLARANWAJI OMONIYI ABIKOYE & ORS

(2019)LCN/13188(CA)

In The Court of Appeal of Nigeria

On Friday, the 3rd day of May, 2019

CA/K/92/2017

JUSTICES

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria

Between

UNITY BANK PLC – Appellant(s)

AND

1. MR. OLARANWAJI OMONIYI ABIKOYE

2. ALH. BASHIR MURTALA

3. THE DEPUTY SHERIFF, KADUNA STATE – Respondent(s)

RATIO

WHEN AN APPEAL CAN BE SAID TO BE VALID

In the case of Clev Josh Ltd V Tokimi (supra) it was held: “An appeal can only be valid if initiated by the filing of the appropriate notice of appeal as prescribed by the Rules of the relevant Court and where the notice of appeal is defective there cannot be said to be a competent appeal in which the powers of the appellate Court can be invoked.” PER ABUNDAGA, J.C.A.

WHETHER OR NOT AN APPELLANT IS ONLY ENTITLED TO CONTEST THE JUDGEMENT OF A TRIAL COURT ONLY ON ISSUES PROPERLY RAISED BEFORE THE LOWER COURT 

An appeal, once it is competent invokes the power of the appellate Court to hear and determine its substance, the reason why the appellant is dissatisfied with what the lower Court decided, and the Respondent?s reaction to those complaints. This is the views of the Court as expressed by the Court in its holding in the case of Econet Wireless & Anor (2014)7 NWLR (Pt.140524, Paras F-H, thus: An appellate Court determines the dispute of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court only on the issues properly raised before the lower Court and pronounced upon by that Court.” PER ABUNDAGA, J.C.A.

THE PURPOSE OF AN APPEAL

The purpose of an appeal is to find out whether on the state of pleadings, evidence and applicable law, the lower Court had come to the right decision in relation to the reliefs canvassed in the matter the Court?s intervention is sought. An appeal therefore remains a complaint against a decision arising from the matter in dispute. This explains why a party is not permitted on appeal to change the case he made right from the trial Court, otherwise the party will not be allowed to appeal what had not been decided against him. See Odom & Ors V P.D.P & Ors (2015) LPELR- 2435 (SC). PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): This appeal arose from the Ruling of the lower Court on a motion on notice delivered on 4th October, 2016. The motion aforestated, dated 13th June, 2016, was filed on the same date.

Therein, the Applicant/Garnishee which is now the Appellant in this appeal, prayed the Court for the following reliefs:

1. An Order of this Honourable Court setting aside the writ of execution issued in this suit against the Garnishee/Applicant.

2. An Order of this Honourable Court setting aside its order made on the 28th day of May, 2015 making the Garnishee order nisi in this garnishee proceeding absolute against the Garnishee/ Applicant for default to show cause and of appearance.

3. An Order discharging the Garnishee/Applicant from the garnishee proceedings.

4. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.

The motion is supported by an affidavit of 6 paragraphs, and annexed with two exhibits (Exhibits A and B). it is also accompanied with written address of counsel.

?In opposition to the

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motion, the Judgment Creditor/ Respondent caused to be filed on his behalf a counter affidavit of 5 paragraphs. Annexed to the counter affidavit are two Exhibits, marked as Exhibits F1 and F2. Also accompanying the counter affidavit is counsel?s written address. The motion was heard by the lower Court presided over by Hon. Justice M.L. Bello, who, in a considered ruling delivered on 4th October 2016, dismissed same.

It is against that order of dismissal that the Applicant/Appellant appealed to this Court. He filed his notice of appeal on 5th October 2016, containing two grounds of appeal. The grounds of appeal short of their particulars are hereunder reproduced:

GROUND ONE: The learned trial Judge erred in law when he failed to set aside the Garnishee Order Absolute made against the Appellant having found that the Appellant as Garnishee was not indebted to the Judgment Debtor.

GROUND TWO: The learned trial Judge erred in law when he dismissed the Appellant?s application dated the 13th day of June, 2016 praying for an order setting aside the Garnishee order absolute and writ of execution issued pursuant to the order on the grounds

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that the Sheriffs and Civil Process Act, cap 56 Laws of the Federation of Nigeria does not expressly provide that a Garnishee must be put on notice or served a copy of the Garnishee order absolute made against it before execution can be levied.

The record of appeal was compiled and transmitted to this Court on 23rd February 2017. Thereafter counsel filed their briefs of argument.

The Appellant?s brief of argument, settled by Ahmed Ladan Kabir, Esq was filed on 14th February 2017, and was deemed properly filed and served on 5th July, 2017.

The first reaction of the 1st Respondent when served the Appellant?s brief was to file a notice of preliminary objection. The notice of preliminary objection was filed on 1st August, 2018, the same day he also filed his brief of argument, settled by Kayode Faturiyele, Esq, wherein arguments on the notice of preliminary objection are incorporated. The Appellant filed his reply brief of argument on 20th August, 2018 in which he joined issues with the 1st Respondent on the notice of preliminary objection, and issues arising from the 1st Respondent?s brief of argument.

?

The notice of

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preliminary objection seeks to terminate the appeal in limine, and as such must first be determined for if it succeeds, there will be no need to go further into the substantive appeal. The notice of preliminary objection is brought pursuant to Order 7 Rule 6, Order 10 Rule 1 of the Court of Appeal Rules and Section 15 of the Court of Appeal Act, 2004, and under the inherent jurisdiction of this Court. The grounds upon which it is predicated are as follows:

1. The instant appeal is not an appeal against the order absolute made by the trial Court against the Appellant.

2. The trial Court becomes functus officio having made the order absolute and as such cannot set aside that order.

3. There is no provision in the Sheriffs and Civil Process Act, 2004 that makes it mandatory that an enrolled order absolute must be served on a garnishee before a writ of execution can be issued by the Court.

In support of the notice of preliminary objection is an affidavit of 5 paragraphs.

?

I have looked at the arguments advanced in support of the grounds in support of the notice of preliminary objection. What counsel to the

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1st Respondent has put forward as reasons for the striking out of the appeal go to the substance of the appeal, and not the competence of the appeal. Order 7 Rule 6 of the Rules of this Court under which the preliminary objection is brought provides that the Court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason. An appeal may be competent in terms of the subject matter of the appeal but if it is filed out of time, for instance it will for that reason be rendered incompetent. Thus the for any other sufficient reason contained in Order 7 Rule 6 of the Court of Appeal Rules.

The main thrust of the argument of learned counsel for the 1st Respondent in support of the notice of preliminary objection is that once a Court has made a final decision and necessary consequential orders in a matter presented before it for adjudication it becomes functus officio and it is precluded from revisiting or varying same. He relied on several authorities including Nigerian Army V Iyela (2008)18 NWLR (Pt.118)115 at 131-132, Paras B-B, 138, Paras A-G, 140,

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Paras E-F; Usman V KSHA (2007)1 NWLR (Pt.1044)148 at 190 Paras B-H, and in specific reference to his submission that a garnishee order absolute cannot be set aside, he relied on NITEL Plc V I.C.T.C Directory Publishers Ltd (2009)6 NWLR (Pt.356) at page 388 Paras A-D counsel however, also relied on Clev Josh Ltd V Tokimi (2008)13 NWLR (Pt.1104) P,439, Para D-F. The totality of the submission of the Appellant counsel?s submission is that the notice of preliminary objection is targeted at the substance of the appeal and not the competence, and I cannot agree more with him. In the case of Clev Josh Ltd V Tokimi (supra) it was held:

“An appeal can only be valid if initiated by the filing of the appropriate notice of appeal as prescribed by the Rules of the relevant Court and where the notice of appeal is defective there cannot be said to be a competent appeal in which the powers of the appellate Court can be invoked.”?

In the entirety of the processes filed in support of the notice of preliminary objection, the 1st Respondent has not pointed to anything that makes the notice of appeal defective. That a relief sought at the lower

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Court is not grantable is an argument that goes to the substance of the appeal and not its competence. An appeal, once it is competent invokes the power of the appellate Court to hear and determine its substance, the reason why the appellant is dissatisfied with what the lower Court decided, and the Respondent?s reaction to those complaints. This is the views of the Court as expressed by the Court in its holding in the case of Econet Wireless & Anor (2014)7 NWLR (Pt.140524, Paras F-H, thus:

An appellate Court determines the dispute of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court only on the issues properly raised before the lower Court and pronounced upon by that Court.”

The preliminary objection has no merit, it is totally misconceived. It is hereby dismissed.

The dismissal of the preliminary objection ushers the Court into the determination of the main appeal. Two issues were formulated in the Appellant?s brief of argument. Those issues are:

1.

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Whether having regard to the circumstances of this case the lower Court ought not to have set aside the garnishee order absolute made against the appellant as Garnishee having not been the judgment debtor?s debtor. (Distilled from Ground one).

2. Whether the lower Court was not wrong in refusing to set aside the writ of execution issued against the appellant consequent to the garnishee order absolute without first putting the appellant on notice of the order absolute made against it before levying execution on its movable properties. (Distilled from Ground 2).

The 1st Respondent adopted the Appellant?s issues for his arguments in opposition to this appeal in his brief of argument.

In my view there is only one main issue determinable from the grounds of appeal and the issues raised therein by the parties. That issue in my view is:

Whether the lower Court was in error in refusing to set aside the Garnishee Order Absolute made by it on 28th day of May, 2015.

?

I intend to split the main issue into two sub-issues, each of which will be devoted to the issues formulated by the Appellant and adopted

8

by the Respondent.

I will start with issue one. Looking at ground one from which the issue was formulated, one wonders whether it is a ground of appeal arising from the Ruling of the lower Court delivered on 28th May in which it refused to set aside its garnishee order absolute. It is pertinent to reproduce the portion of the judgment or ruling of the Court which formed the ratio decidendi of its decision: This can be seen at pages 53-54 of the record of appeal. It is as follows:

It is in the affidavit evidence that the applicant was served with the order nisi but did nothing up to the time the order nisi was made absolute.

This order absolute was made (sic) on the applicant on 25/5/2016. It was served before that time and it did nothing till on 13/6/2016.

The applicant has not come before this Court in compliance with the Rules of this Court to explain why the order nisi should not be made absolute. There is proper service of the order nisi. Therefore the applicant cannot raise the issue of non-service. See Chime V. Chime (2001)3 NWLR (Pt.701)527.

It is at the instance of a party not served that a Court will nullify

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an order and not at the instance of a party that was duly served. See Mbadinuju V Ezuka (1994)8 NWLR (Pt.369)5. See also Mark V Eke(2004)5 NWLR (Pt.865)54. See also Idisi V Ecodril (Nig) Ltd (2016) LPELR SC 127/2005. The applicant has itself to be blamed for not appearing in Court after the order nisi was served on it to explain why it should not be made absolute.

Having been made absolute the Court cannot set aside its judgment or order. The order absolute has finally decided the merit of the case put before it that it becomes, that is, this Court is functus officio, it is irreversible by this Court. See Nigerian Army V Iyela (2009)ALL FWLR (Pt.452) 1012.”

Ground one, and the issue raised therefrom by the Appellant has not attacked these findings/pronouncement. Perhaps I should reproduce the said ground one for ease of reference:

Ground one ? “The learned trial Judge erred in law when he failed to set aside the Garnishee order absolute made against the appellant having found that the appellant as garnishee was not indebted to the judgment debtor.”

The purpose of an appeal is to find out

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whether on the state of pleadings, evidence and applicable law, the lower Court had come to the right decision in relation to the reliefs canvassed in the matter the Court?s intervention is sought. An appeal therefore remains a complaint against a decision arising from the matter in dispute. This explains why a party is not permitted on appeal to change the case he made right from the trial Court, otherwise the party will not be allowed to appeal what had not been decided against him. See Odom & Ors V P.D.P & Ors (2015) LPELR- 2435 (SC).

It appears to me that the Appellant?s counsel misconstrued this appeal to be one against the garnishee order absolute, whereas what is on appeal is the ruling of the lower Court dismissing the applicant?s motion to set aside. My justification for saying this is that the ground one and issue one distilled from it could only have arisen if the applicant had gone to Court in obedience to the order nisi that was served on it to show cause, but as the ruling of the lower Court indicates the applicant refused to go to the Court and did not file any process in which to show why the order nisi should

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not be made absolute, and that was why the Court rightly made the order nisi absolute. See Federal Government of Nigeria V Interstella Communication Ltd (2015)9 NWLR (Pt.1463) p.1 at 43-44. Issue one having not addressed any complaint arising from the ruling appealed against it, is pointless to go into a fuller discourse on the arguments canvassed on it. To close on this, I need to state even for the sake of learning, that it is the law that a ground of appeal must not be formulated in abstract but must arise or relate to the judgment appealed against. In order words, a ground of appeal must be against a ratio decidendi of the judgment appealed against. Accordingly, a ground of appeal must be connected with the controversy between the parties. Where a ground of appeal does not relate to the ratio decidendi of the decision appealed against it is liable to be struck out. See Agbakwuru & Anor V Igbokwe & Anor (2012) LPELR- 2948 (CA). If the 1st Respondent?s counsel were properly informed and/or guided, the right course to have taken in respect of this ground (ground one) would have been to file a motion for it to be struck out as an

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incompetent ground of appeal.

Issue two complains against the refusal of the lower Court to set aside the writ of execution because the Appellant was not put on notice before the said execution was levied on the Appellant?s movable properties. In the Ruling of the lower Court, the trial Judge held in relation to execution thus:

“The order absolute is execution. See Zenith Bank Plc V John (2015) NWLR (Pt. 1458) 393 where it is stated that an order nisi when made absolute the money in the hand of the garnishee becomes attached and judgment becomes executed automatically without further ado and the entire matter becomes concluded wherein an order for stay of execution, or injunction pending the appeal cannot be granted against it.” (see page 55 of the record of appeal).

The complaint herein is not about the judgment debtor?s money in the Garnishee bank (the Appellant). It is about the attachment of the movable properties of the Appellant. It is their contention that since they were not in Court when the garnishee order nisi was made absolute, they were therefore entitled to be notified before execution could

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be levied. Reliance was placed on Section 86 of the Sheriffs and Civil Process Act. It is not the 1st Respondent?s case that the Appellant was notified before execution was levied on their movable properties. The 1st Respondent?s case is that the Appellant even though served with the order nisi, neither attended Court on the date shown therein nor filed an affidavit to show cause. That he was therefore entitled to the garnishee order nisi being made absolute. Nothing in the record of appeal points to the service of the garnishee order absolute on the Appellant before execution was levied on the movable properties of the Garnishee Bank/Appellant. The provision of Section 86 of the Sheriffs and Civil Process Act is important in this argument. It provides:

If the garnishee does not within the prescribed time pay into Court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, together with the costs of the garnishee proceedings, and does not dispute the debt due or claimed to be due from him to such debtor, or if he does not appear upon summons, the Court upon proof of service may order execution

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to issue, and it may issue accordingly without any previous writ or process, to levy the amount due from such garnishee, or so much thereof as may be sufficient to satisfy the judgment or order, together with the costs of the garnishee proceedings.”

A literal interpretation of Section 86 supra is that once it is proved that the garnishee order nisi was served on the garnishee, no further notice is required to be served before execution can be levied. The order absolute is the execution. The following cases on Section 86 supra are instructive on the point:Zenith Bank Plc V Kano & Ors (2016) LPELR- 40335 (CA); CBN V Dantrans (Nig) Ltd & Sons (2018) LPELR-46678 (CA). ?

Now, I have taken particular note of the fact that execution here was levied on the movable properties of the Appellant. The Appellant?s complain in this issue is that it was not notified before execution was levied, its complaint is not on the propriety of execution being levied on its movable properties. The issue is thus rested with my finding that it was not entitled to any further service of notice since it has been proved and admitted by them that the

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garnishee order nisi was served on the Appellant before it was made absolute. The issue is thus resolved against the Appellant.

This leads me to the conclusion that this appeal is utterly without merit. It is hereby dismissed. The ruling of the lower Court is thus affirmed. Costs is assessed at N50,000.00 in favour of the Respondent.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I agree.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the Judgment of my learned brother James Gambo Abundaga JCA and I agree.

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Appearances:

Ahmed Ladan Gobir, Esq.For Appellant(s)

Kayode Faturiyele, Esq. for the 1st RespondentFor Respondent(s)

Appearances

Ahmed Ladan Gobir, EsqFor Appellant

AND

Kayode Faturiyele, Esq for the 1st RespondentFor Respondent