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UNITY BANK v. BENEDICK (2021)

UNITY BANK v. BENEDICK

(2021)LCN/15805(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/L/195/2016

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

UNITY BANK PLC APPELANT(S)

And

ENGR. EMMANUEL ADELEKE BENEDICK RESPONDENT(S)

 

RATIO

THE FUNDAMENTAL RIGHT TO FAIR HEARING

The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See alsoA. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.

The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642, where Ngwuta JSC, (God bless his soul) had pronounced emphatically thus:
“As for the related complaint of denial of right to fair hearing, my lord Chukwuma Eneh JSC had this to say: “There can be no doubt from the foregoing that fair hearing has become the whipping principles for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised only seriously and not lightly.” I agree with his Lordship.”
See also Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 @ p. 503; Uzodinma V. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30; Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 531; Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40; Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642.
PER GEORGEWILL, J.C.A.

WHETHER OR NOT PARTIES ARE BOUND BY THE FINDINGS OF THE TRIAL COURT

In Mr. Abiodun Ogunde V. Alhaja Memunat Abdulsalam (2017) LPELR – 41875 (CA) this Court per Georgewill JCA, had reiterated inter alia thus:
“In law parties are bound by the findings of the trial Court, whether rightly or wrongly, not appealed against… However, since there is no cross appeal the Respondent remains bound by the refusal of the Court below to grant some of the reliefs claimed by her against the Appellant. So be it as that is the law that a decision of the Court not appealed against remains valid and subsisting and thus binding on the parties… having not been appealed or cross appealed against would remain binding on the Respondent. It cannot merely be wished away by the Respondent against whom it was made. To set it aside, it must be appealed or cross appealed against it.”
See also Section 241(1) (a) – (v) of the Constitution of Nigeria 1999 (as amended); SPDC Nig. Ltd V. XM. Federal Ltd. & Anor. (2006) 16 NWLR (Pt. 1004) 189; Iyoho V. Effiong & 2 Ors (2007) 11 NWLR (Pt. 1044) 31 @ p. 55; Ogunyade V. Osunkeye (2007) All FWLR (Pt.389) 1175 @ pp. 1206-1207; Onibudo & Ors. V. Akibu & Ors (1982) 13 NSCC 199; LBPC V. Purification Technique Ltd (2012) 52 NSCQR 274 @ p. 309; Williams V. Sanusi (1961) 11 All NLR 334; Onafowokan V. Wema Bank Plc. (2011) 46 NSCQR 181; Oshiomole V. FGN (2005) 1 NWLR (Pt. 907) 414.
PER GEORGEWILL, J.C.A.

THE POSTION OF LAW WHERE A GARNISHEE ORDER ABSOLUTE IS MADE BY A COURT OF COMPETENT JURISDICTION

In law, once a Garnishee Order Absolute is made by a Court of competent jurisdiction that is indeed the end of the matter and the party against whom the Garnishee Order Absolute is made is under an obligation by the force of law to pay over the amount specified in the Garnishee Order Absolute to the Judgment Creditor. The only option open to such a Garnishee is to appeal and obtain an order of stay of execution of the Garnishee Order Absolute. Thus, the Court which has made the Garnishee Order Absolute is itself precluded and robbed of any further jurisdiction from considering again the matter even if new evidence or arguments are presented to it. See Union Bank Plc. V. Boney Marcus Ind. Limited (2005) 7 SC (Pt. II) 780 @ pp. 74 – 78 per Akintan JSC.
Now, as to the new or fresh facts brought in by the Appellant’s Further and Better Affidavit relating to a pending appeal before this Court against the judgment of the Court below by PHCN, it is, in my finding and I so firmly hold, completely of no moment and do not avail the Appellant in its application to set aside the Garnishee Order Absolute made against it by the Court below on 19/6/2013. This is so because such an appeal does not ipso facto operate in law as a stay of execution of the said judgment unless and until an Order of stay of execution is made by this Court under the Rules of this Court. See Section 17 of the Court of Appeal Act, which provides thus:
“An appeal under this Part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon performance of such conditions as may be imposed in accordance with the Rules of Court.”
See also NCICE V. Mabol Associates Ltd (2009) 4 NWLR (Pt. 1131) 267 @ p. 283.
PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the Federal High Court, Lagos Judicial Division; Coram: Muhammed Nasir Yunusa J., in Suit No. FHC/L/CS/275/2002: Engr. Emmanauel Adeleke V. Power Holding Company of Nigeria Plc. & Ors, delivered on 10/3/2014, wherein the Appellant as Applicant’s application to set aside the Garnishee Order Absolute made on 19/6/2013 by the Court below against the Appellant in favor of the Respondent was dismissed.

​The Appellant was peeved with the said Ruling and had appealed against it vide its Notice of Appeal filed on 21/3/2014 on two Grounds of Appeal at page 112 – 113 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 23/2/2016 but was deemed properly transmitted on 20/10/2016. Subsequently, with the leave of this Court sought and obtained, an Amended Notice of Appeal was filed on 1/3/2017 on three Grounds of Appeal. The Appellant’s brief was filed on 24/4/2017 but was deemed as properly filed on 8/5/2019. The 1st Respondent’s brief was filed on 6/6/2017 but was deemed as properly filed on 8/5/2019. The Appellant’s reply brief was filed on 18/1/2018 but was deemed as properly filed on 8/5/2019.

At the hearing of this appeal on 27/1/2021, Nick Omeye Esq., learned counsel for the Appellant adopted the Appellant’s brief and reply brief as his arguments and urged the Court to allow the appeal and set aside the Ruling of the Court below. On his part, Femi Atteh Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the appeal and affirm the Ruling of the Court below. On the application of the learned counsel for the Appellant to strike out the name of the 2nd Respondent from the record of this appeal and there being no objection by the learned counsel for the 1st Respondent, the name of the 2nd Respondent was consequently struck off the record of this Appeal.

​The Respondent as Claimant before the Court below had instituted an action against the former 2nd Respondent, PHCN, as Defendant, whose name was struck out by this Court at the hearing of this appeal on 27/1/2021 on the application of the Appellant’s counsel, claiming the following reliefs, namely:
1. A Declaration that the memorandum of Termination of Appointment dated 29/4/1998, signed by one Usman Sule Riruwai for Executive Director (Corporate Services) and addressed to the Plaintiff through the General Manager (Special Projects) by which the Defendant purported to terminate with immediate effect the appointment of the Plaintiff contrary to the Conditions of Service entered into by the two parties is illegal, invalid, ineffective, ambiguous, irregular, null and void and could not terminate the Plaintiff’s appointment.
2. Reinstatement of the Plaintiff in his post as Senior Manager (Electrical) i.e. SM3 forthwith, and payment of his salaries, allowances, and other benefits from the date of the alleged termination of the Plaintiff’s appointment to the date of judgment and thereafter.
ALTERNATIVELY – The Plaintiff is to be paid
A. N1, 000, 000 Damages for breach of his contract of employment;
B. His appropriate salary in lieu of notice together with all allowances and benefits accruable therefrom;
C. His gratuity of the sum of N424,022.72 as at 11th August, 1998 and

3. His pension of N9,773.57 per month from 11th August 1998 for life subject to such increases review as may apply from time to time. See pages 1 – 6 of the Record of Appeal

BRIEF STATEMENT OF FACTS
The Respondent as Claimant before the Court below had instituted an action against the former 2nd Respondent as Defendant, hereinafter simply referred to as PHCN, and had on 23/3/2009 obtained Judgment against PHCN, which appealed against the said judgment to this Court and which appeal was entered in this Court as Appeal No. CA/L/776/2009 and some proceedings already conducted by this Court. In order to enforce the said judgment, the Respondent commenced a Garnishee Proceedings before the Court below and on 20/5/2013 obtained a Garnishee Order Nisi against several Garnishees, including the Appellant as the 13th Garnishee. Upon service of the Garnishee Order Nisi, the Appellant filed an Affidavit to show cause, disclosing therein that it has in its custody as Bankers to PHCN the total sum of N13,146,063.56 in its various Bank Accounts. On 19/6/2013, the Court below heard the parties to the Garnishee proceedings and made the Garnishee Order Absolute against some of the Garnishees, including the Appellant.

Subsequently, on 8/10/2013 the Appellant filed an Application before the Court below praying for an Order setting aside the Garnishee Order Absolute on the ground that before the Garnishee Order Absolute was made by the Court below, PHCN had electronically moved the money from its collections account, which is an online real time account over which the Appellant had no control as the funds therein are swept electronically by Inter – Switch to the CBN. The Parties filed and exchanged affidavit, counter affidavit and further and better affidavit and the parties were duly heard on the Appellant’s application to set aside the Garnishee Order Absolute. On 10/3/2014, the Court below delivered its ruling, wherein it dismissed the Appellant’s application for lacking in merit, hence this Appeal. See pages 7 – 35, 48 – 54, 56 – 57, 58 – 64, 65 – 70, 71 – 74, 75 – 79, 81 – 82, 84, 87 – 97, 84, 98 – 111 and 112 – 113 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the three Grounds of Appeal, namely:

1. Whether the Court below had the requisite jurisdiction to entertain the 1st Respondent’s application for garnishee order nisi and to subsequently grant a garnishee order nisi and order absolute at a time when the appeal against the judgment upon which the garnishee proceedings was predicated, was pending before Court of Appeal in Appeal No: CA/L/776/2009? (Distilled from Ground 3).

2. Whether the failure of the Court below to consider the Appellant’s further and better affidavit and reply on points of law in its ruling amounted to a denial of fair hearing that should warrant the setting aside of the decision of the lower Court? (Distilled from Ground 1).
3. Whether the Court below was right in holding that the averments deposed to in the Appellant’s affidavit in support of the motion on notice dated 8th October, 2013, were mere speculations, when the said averments were not controverted in the 1st Respondent’s counter – affidavit? (Distilled from Ground 2).

In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether having regards to the fact that the Court below had made the Garnishee Order Absolute, the Court below had become funtus officio and therefore lacks jurisdiction to entertain the Application to set aside the Garnishee Order Absolute?
2. Whether the Appellant’s right of fair hearing, assuming without conceding that the lower Court has jurisdiction to entertain the Application, were denied by the failure of the Court below to countenance the Appellant’s Further and better Affidavit?

I have given due considerations to the facts and circumstances of this appeal as in the Record of Appeal, the ruling of the Court below and the submissions of counsel in their respective briefs and I am of the view that issues two and three for determination as distilled in the Appellant’s brief best represent the two real issues for determination in this appeal. In my view, a consideration of these two issues would invariably involve a consideration of the two issues as distilled in the Respondents’ brief since it appears to me that both Appellant’s issue one and Respondent’s issue one, as above, are completely unrelated to the Ruling appealed against and do not arise from any of the findings and/or decisions in the Ruling of the Court below delivered on 10/3/2014 and therefore, are clearly incompetent and ought to be struck out. Accordingly, both Appellant’s issue one and Respondent’s issue one are hereby struck out. See Inspector General of Police V. Ikpila (2016) 9 NWLR (Pt. 1517) 236 @ p. 270, where this Court per Georgewill, JCA, had stated inter alia thus:
“In any event, the law is settled that for an issue to be competent for consideration in an appeal, it must necessarily arise from a complaint against the decision on appeal. Where therefore, an issue raised by either an Appellant or a Respondent does not arise from the grounds of appeal, the issue is incompetent and liable to be struck out.”

I shall therefore, determine this appeal on the competent issues two and three only as distilled in the Appellant’s brief. Consequently, the Appellant’s issues two and three as hereby set down and adopted as the two issues for determination in this appeal but since both issues are interrelated, I shall consider and resolve them together.

ISSUES TWO AND THREE TAKEN TOGETHER
Whether the failure of the Court below to consider the Appellant’s further and better affidavit and reply on points of law in its ruling amounted to a denial of fair hearing that should warrant the setting aside of the decision of the Court below, AND whether the Court below was right in holding that the averments deposed to in the Appellant’s affidavit in support of the motion on notice dated 8/10/2013 were mere speculations, when the said averments were not controverted in the 1st Respondent’s counter-affidavit?

APPELLANT’S COUNSEL SUBMISSIONS
On issue two, learned counsel for the Appellant had submitted that the failure of the Court below to consider the Appellant’s further and better affidavit and reply on points of law amounted to a breach of fair hearing that should warrant the setting aside of its Ruling and contended that the Court below merely considered only the Appellant’s affidavit and the Respondent’s counter affidavit but failed to consider the Appellant’s further and better affidavit and the reply on points of law as was required of it by law and urged the Court to hold that the said failure amounted to a breach of the Appellant’s right to fair hearing and thereby denied the Appellant a full and fair hearing of its case and to allow the appeal and set aside the offending Ruling of the Court below. Counsel relied on News Watch Comm. Ltd V. Atta (2006) 12 NWLR (PT. 993) 144 @ p. 168; Enebeli V. CBN (2006) 9 NWLR (Pt. 984) 69 @ p. 78; Abiara V. Regd. T.M.C.N (2007) 11 NWLR (Pt. 1045) 280 @ pp. 300 – 301; Longe V. FBN Plc. (2010) 6 NWLR (PT. 1189) 1 @ pp. 20 – 21.

It was also submitted that the refusal of the Court below to consider the Appellant’s further and better affidavit and reply on points of law filed in reaction to the Respondent’s counter – affidavit was tantamount to a refusal to fully hear the Appellant’s application and contended that in law any judgment reached in breach of the fair to hearing of a party will be liable to be set aside and urged the Court to invoke the provision of Section 15 of the Court of Appeal Act and re-hear the Appellant’s Motion on Notice filed on 8/10/2013 and to grant the application in favor of the Appellant against the Respondent and to set aside the Garnishee Order Absolute. Counsel relied on News Watch Communications Ltd V. Atta (2006) 12 NWLR (Pt. 993) 144 @ p. 181; Obomhense V. Erhahon (1993) 7 NWLR (Pt. 303) 22 @ p. 47.

On issue three learned counsel for the Appellant had submitted that the Respondent did not deny the material averments in the Appellant’s affidavit, which had remained un-contradicted in law and are thus deemed admitted and contended the Appellant furnished the Court below all the necessary material facts that would have enabled it to exercise its discretion judicially and judiciously in favor of the Appellant had it considered those materials facts showing that PHCN Account was not a corporate account but a collections account which is online real time over which the Appellant had no control as the funds in the said account are swept electronically by Inter – Switch to the designated account of PHCN with the Central Bank of Nigeria and urged the Court to hold that these amounted to sufficient material and not mere speculation as erroneously held by the Court below for the granting of the Appellant’s application and to so grant it and allow the appeal and set aside the Garnishee Order Absolute made by the Court below. Counsel relied on APC V. INEC (2015) 8 NWLR (Pt. 1462) 531 @ p. 584; Midland Galvanising Product Ltd V. OSIRS (2015) 8 NWLR (Pt. 1460) 29 @ p. 42; Ede V. Mba (2011) 18 NWLR (Pt. 1278) 236 @ p. 278; Anatogu V. Iweka II (1995) 8 NWLR (Pt. 415) 547 @ p. 586.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, whether the Appellant’s right of fair hearing was denied by the failure of the Court below to countenance the Appellant’s Further and Better Affidavit, learned counsel for the Respondent had submitted that the Appellant’s right to fair hearing was not in any way breached by the Court below and contended that the the Appellant required the leave of the Court below to file and rely on Further and Better Affidavit which it failed to do and urged the Court to hold that in the circumstance the Court below was perfectly right to have discountenanced the Appellant’s incompetent Further and Better Affidavit filed without the leave of Court contrary to the Rules of the Court below and to dismiss the appeal and affirm the Ruling of the Court below. Counsel relied on Order 26  Rules 3, 4, 5 and 18; and Order 27 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009.

It was also submitted that upon the making of the Garnishee Order Absolute the Court below had become functus officio and the only remedy for the Appellant was by way of an appeal and contended that in the circumstances whether or not the Further and Better Affidavit was considered and/or countenanced by the Court below was of no moment since in law it lacked the jurisdiction to grant the Appellant’s application to set aside the Garnishee Order Absolute and to dismiss the appeal for lacking in merit and affirm the Ruling of the Court below.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the Appellant’s Further and Better Affidavit was competent in that in law there is no provision requiring the leave of the Court below for the filing of a Further and Better Affidavit and contended that the interpretation accorded the provisions of the Rules of the Court below by the learned counsel for the Respondent was misconceived and urged the Court to discountenance the same and to allow the appeal and set aside the Ruling of the Court below and grant the Appellant’s application filed on 8/10/2013 and set aside the Garnishee Order Absolute made against the Appellant by the Court below on 19/6/2013. Counsel referred to Order 26 Rules 3, 4, 5 and 18 and Order 27 Rule 4 of the Federal High Court (Civil Procedure) Rules 2009.

RESOLUTION OF ISSUES TWO AND THREE
My lords, the Appellant had approached the Court below vide its application filed on 8/10/2013 seeking an Order setting aside the Garnishee Order Absolute made by the Court below on 19/6/2013 against the Appellant as the 13th Garnishee in favour of the Respondent who was the judgment creditor while PHCN was the judgment debtor.

​On 23/3/2009, the Court below had entered judgment against PHCN, the erstwhile employer of the Respondent for wrongful termination. The judgment was appealed against by the judgment debtor PHCN in the exercise of its inalienable right of appeal. However, it would appear that there was no stay of execution of the said judgment pending the said appeal granted either by the Court below or this Court. The Respondent in exercise of his right to reap the fruit of his judgment as the successful party initiated Garnishee proceedings against several Banks, including the Appellant as the 13th Garnishee. On 20/5/2013, he obtained a Garnishee Order Nisi against the several Banks, including the Appellant as the 13th Garnishee. The Garnishee Order Nisi was duly served on the Appellant, which in response and as required of it by law filed an Affidavit to show cause in which it stated that PHCN, the judgment debtor has in its credit in the various accounts maintained with the Appellant, the total sum of N13,146,063.56. On the return date of 19/6/2013, and with these facts made available by the Appellant, the Court below made the Garnishee Order Absolute in respect of the sum of N13, 146, 063. 56 presented by the Appellant as standing to the Credit of PHCN, the judgment debtor.

Now, from 19/6/2013 when the Garnishee Order Absolute was made and subsisting the Appellant neither complied with it as required by law nor did it appeal against the Garnishee Order Absolute until 8/10/2013, that is almost four months later, when it approached the Court below vide an application praying the Court below to set aside the Garnishee Order Absolute mainly on the ground that there are information now at its disposal which the deponent to their Affidavit to show cause was unaware of and which are very vital to the consideration to set aside the Garnishee Order Absolute. The parties filed and exchanged affidavit by the Appellant and counter – affidavit by the Respondent, and further and better affidavit together with Exhibits 1 – 4 by the Appellant, which alleged non consideration by the Court below in its Ruling is the main crux of this appeal.

​In the supporting Affidavit of the Appellant deposed to by one Sonney Olis Esq, Legal Practitioner in the Law Firm of the Appellant’s counsel it was stated inter alia thus: That Mr. Emmanuel Alade, the Head, payments & collections department of the 13th Garnishee/Applicant, informed him that PHCN does not maintain a corporate account with the Appellant but an account known as collections account which is online real time; That funds in this account are swept electronically by Inter – Switch to the designated account of PHCN with the Central Bank of Nigeria; That “Pay Direct Platform” is used for the collections of revenue for PHCN and has been programmed to sweep at specific intervals the funds of PHCN which are in the said collections account to the PHCN account domiciled with the Central Bank of Nigeria; That the Appellant has no control and cannot freeze PHCN account as it does not maintain a Corporate account with the Appellant; That only Inter – Switch, the owner of the “Pay Direct Platform” can freeze PHCN’s account; That PHCN’s account with the Appellant is a non chequeing account; That these material facts were not known to Mrs. Adeola Apata, Head, Legal Services department of the Appellant prior to the making of the Garnishee Order Absolute; That Mrs Adeola Apata had no knowledge of the nature of the accounts which PHCN maintains with the Appellant prior to the Order of Garnishee Absolute; That the Appellant does not have any control whatsoever over the sum of N13, 146, 063. 56 or any sum in the collections account PHCN maintains with it; That depositors fund would be at risk if execution is levied against the Appellant.

​In the Counter – affidavit of the Respondent deposed to by one Peter Jatto, Litigation Officer in the Law Firm of the Respondent’s counsel, it was stated inter alia thus: That paragraph 3, 4, 5 and 6 of the Affidavit in support are false; That as clearly deposed to by one Chidinma Okoronkwo on behalf of and with the authority of the Appellant, the Appellant had the sum of N13, 146, 063. 58 in the various accounts held by PHCN; That the depositions of Sonney Olis are false and an afterthought meant to mislead the Court and overreach the Respondent.

In the Further and Better Affidavit of the Appellant deposed to by one Abdullahi Hammed, Litigation Officer in the Law Firm of the Appellant’s counsel, it was stated inter alia thus: That PHCN has since appealed against the judgment of the Court below delivered on 23/3/2009 and sought to be enforced by the Respondent by means of Garnishee proceedings; That the appeal has since been entered in this Court as Appeal No. CA/L/776M/2009; That the appeal is now pending before this Court and some proceedings already conducted in it; that this Court is now seised of the whole subject matter of the Respondent’s Suit and the resultant judgment being sought to be enforced before the Court below despite the pendency of the appeal against the said judgment to this Court. Annexed to the Further and Better Affidavit of the Appellant were: Exhibit 1 – A Notice of Appeal by PHCN; Exhibit 2 – A CTC of a Motion on Notice filed on 8/7/2013 before this Court; Exhibit 3 – A CTC of the Record of Proceedings of this Court on 2/4/2012 in Appeal No. CA/L/776M/2009; Exhibit 4 – A CTC of the Respondent’s Motion for extension of time for leave to Cross – Appeal. See pages 7 – 12, 13 – 24, 48 – 50, 52 – 54, 56 – 57, 58 – 60, 65- 66 and 75 – 97 of the Record of Appeal.

It was on the above state of affidavit evidence of the parties that the Court below had in its ruling delivered on 10/3/2014 dismissed the Appellant’ application for lacking in merit, while stating inter alia thus:
“…Learned Counsel, neglected or failed to support the assertions with documentary evidence by exhibiting the statement of account or summary of the transactions in the said collection account… It is not sufficient for an Applicant to rely on mere averments. The averments must be substantiated by exhibiting the relevant materials, for the averment to be credible…It is therefore incumbent upon the Applicant to place all the necessary materials before the Court to enable the Court exercise its discretion in his favour. This is a banking transaction which is mainly documentary. Failure of the Applicant to place the necessary materials to aid the Court in meeting the justice of the case is fatal to its application. As it is now, the averments are mere speculation and speculation has no place in law. In the light of the above the application is hereby dismissed.” See pages 98 – 111 of the Record of Appeal.

My lords, I had earlier recounted and set out the deposition of facts relied upon by the parties. I have also reviewed the submissions of counsel in their respective brief. This appeal has brought to the fore once again the issue of what amounts to review and evaluation of evidence, particularly affidavit evidence of parties by a Court. Is it indispensable that a Court must restate or reproduce all the evidence or affidavit in its judgment or ruling for the parties to see before it could be said that a particular affidavit or evidence has been reviewed? I have looked calmly at the Ruling of the Court below where the Court below had stated inter alia thus:
“It is therefore incumbent upon the Applicant to place all the necessary materials before the Court to enable the Court exercise its discretion in his favour. This is a banking transaction which is mainly documentary. Failure of the Applicant to place the necessary materials to aid the Court in meeting the justice of the case is fatal to its application. As it is now, the averments are mere speculation and speculation has no place in law. In the light of the above the application is hereby dismissed.”

In considering whether or not a proceeding or judgment of a Court was in breach of the right to fair hearing of a party, the law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.

The term ‘fair hearing’ is in most cases synonymous with fair trial and natural justice, an issue which clearly is at the threshold of our legal system and thus once there has been a denial of fair hearing the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case or in the judgment of the Court. However, the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See alsoA. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.

The right to fair hearing is very fundamental and failure by a Court to observe it would invariably vitiate both the proceedings and judgment of such a Court, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit. However, it must be pointed out at once that the issue of fair hearing must be raised with all seriousness and in good faith. It must never be raised in bad faith or merely intended as a red herring to raise a storm in a tea cup without any factual basis. See Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642, where Ngwuta JSC, (God bless his soul) had pronounced emphatically thus:
“As for the related complaint of denial of right to fair hearing, my lord Chukwuma Eneh JSC had this to say: “There can be no doubt from the foregoing that fair hearing has become the whipping principles for counsel trying to catch at a straw to sustain a modicum of standing in a hopeless case where the case is already dead as a dodo. The approach of counsel in general is deprecated. Fair hearing should, from what it is and represents in our adjudicative process be raised only seriously and not lightly.” I agree with his Lordship.”
See also Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 @ p. 503; Uzodinma V. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30; Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 531; Agbapounwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40; Adebesin V. The State (2014) 9 NWLR (Pt. 1413) 609 @ pp. 641 – 642.

So, did the Court below failed to consider the totality of the affidavit evidence of the parties, including the Appellant’s further and better affidavit and thereby denied the Appellant of its right to fair hearing as guaranteed to it by Section 36 (1) of the Constitution of Nigeria 1999 (as amended) as vehemently contended in this appeal by the Appellant? In other words, with the above quoted passage in the Ruling, of the Court below, can it be said that the Appellant’s Further and Better Affidavit was not considered merely because it was not specifically mentioned and or set out verbatim in the Ruling of the Court below? I think not! Could it also be said that because the Respondent’s counter – affidavit was also not set out verbatim it was not also considered by the Court below? I also do not think so!
Now, how judges write their judgments and/or rulings may differ from one judge to the other. Indeed, some judges would set out in detail the entire evidence or affidavit evidence verbatim as led by the parties or refer to them by name or specifically before arriving at their findings. Other judges simply proceed to holistically consider the evidence led by the parties and make their findings. I think, notwithstanding into which of the two categories above that a judge falls or belongs and the style he employs in writing his judgments or rulings, so long as he considers the totality of the evidence, bearing in mind what is relevant and admissible, and arrives at the correct findings of facts and right decisions, the judgment or ruling will stand. I am unable to see how it could be said with certainty that the Court below did not consider the totality of the affidavit evidence put forward by the parties, including the Appellant’s further and better affidavit, merely because some of these affidavits, particularly the further and better affidavit, were not specifically mentioned or set out verbatim in the Ruling appealed against by the Appellant.
​It is enough, in my view, that the Court below had a holistic consideration of the entirety of the affidavit of the parties and came to the conclusion that the Appellant failed to substantiate its grounds for its application to set aside the Garnishee Order Absolute made against it by the Court below and thereby dismissed it. Indeed, having painstakingly gone through the entirety of the Ruling of the Court below in the light of the complaint of the Appellant in relation to its further and better affidavit, I can find neither any breach nor even attempted or near breach of the right of the Appellant to fair hearing as there is nowhere the Court below discountenanced the Appellant’s further and better affidavit. The style alone of the writing of this Ruling by the Court below without more cannot and did not in fact and in law constitute a breach of the right to fair hearing of the Appellant, once it has carried out, as it indeed did, an holistic evaluation of the entirety of the evidence as led by the parties and arrived at correct findings. SeeElephant Group Plc. V. National Security Adviser & Anor (2018) LPELR – 45528 (CA), where this Court per Georegwill JCA, had stated inter alia thus:
“Now, while….the way the Court below had written its judgment may not have been elegant and even if the way and manner a trial Court considers and arrives at its decision may not be appealing or appeasing to an Appellant or even to an appellate Court called upon to review the decision of the trial Court, yet it is of no serious moment and thus ceases to be of any importance once the decision reached by the trial Court is correct in conformity with laid down principles, the facts and the dictates of justice of the case…It would thus be safe to opine that in law there is no specific format for Judges to follow in writing their Judgments as they are each entitled to adopt their individual style in writing their Judgments so long as such a judgment contains the issues or questions to be decided in the case; the essential facts of the case of each party and the evidence led in support; the resolution of the issues of fact and law raised in the case; the conclusion or general inference drawn from facts and law as resolved; and the verdict and orders made by the Court, it is a good judgment. Some judges write in flowery languages while others write in simple languages but in all, notwithstanding the style employed, once the constituents of a good judgment are manifest the judge has discharged his duty of writing a good judgment.”
See also Eyo V. Inyang (2001) 1 NWLR (Pt. 715) 1; Jekpe V. Alokwe (2001) 8 NWLR (Pt. 715) 252.
My lords, in law the right to fair hearing is not breached merely because a party, the Appellant, lost his case and is thus only observed if a party wins his case. The Appellant’s right to fair hearing, in my finding therefore, was not in any way or manner breached by the Court below in its Ruling delivered on 10/3/2014, the subject matter of this appeal and I so firmly hold.

​My lords, assuming but no so deciding that the Court below had not considered the Appellant’s further and better affidavit, let me, as urged upon us by the learned counsel for the Appellant, invoke the provisions of Section 15 of the Court of Appeal Act 2004, in the overall and overriding interest of justice to the parties, to re – consider the Appellant’s application filed on 8/10/2013 and seeking an Order setting aside the Garnishee Order Absolute made against the Appellant by the Court below on 19/6/2013. See News Watch Communication Ltd V. Atta (2006) 12 NWLR (Pt. 993) 144 @ p. 168 per Tobi JSC. His lordship, (May God bless his soul) was ready to consider even at the level of the Apex Court an application said not to have been determined by the High Court in the interest of justice to resolve all the issues between the parties once and for all. I am thus emboldened to re-consider the Appellant’s application since all the affidavits, counter – affidavit, further and better affidavit and the Exhibits relied upon by the parties are all now before us as in the Record of Appeal.

​I have scanned through the entire Record of Appeal and I cannot see or find any notice of appeal against the decision of the Court below made on 20/5/2013 granting the Garnishee Order Nisi against the Appellant. I also do not see or find any notice of appeal against the decision of the Court below made on 19/6/2013 granting the Garnishee Order Absolute against the Appellant, yet between 19/6/2013 and 8/10/2013, that is a period of about three months the Appellant neither obeyed nor complied with it nor appealed against it. In law, a subsisting Order of Court is neither made for the fun of it nor to be toyed with but must be obeyed unless and until it is set aside or declared to be a nullity by a Court of competent jurisdiction.
In the circumstances therefore, there being no appeal against the Garnishee Order Nisi and the Garnishee Order Absolute of the Court below made against the Appellant on 20/5/2013 and 19/6/2013 respectively, they remain binding on the Appellant, who cannot merely wish them away. It is for this reason that Ground three of the Appellant’s Amended Notice of Appeal filed on 1/3/2017 and directed against the Ex – parte Garnishee Order Nisi made on 20/5/2013, against which there is no appeal, and from which Appellant’s issue one was purportedly distilled were not only discountenanced in this judgment but were also struck out for being incompetent. For clarity, Ground three in the Amended Notice of Appeal is hereunder reproduced thus:
“The learned Honourable judge erred in law by entertaining and granting the 1st Respondent’s Motion Ex-parte for garnishee order nisi filed at the lower Court when the lower Court had no jurisdiction to either entertain the said motion and/or make an Garnishee Order Nisi.

PARTICULARS OF ERROR
i. The Judgment of the lower Court that gave rise to the garnishee proceedings was already the subject matter of an appeal in APPEAL NO: CA/L/776/09 between the 2nd Respondent and the 1st Respondent before the commencement of the garnishee proceedings.
ii. The 1st Respondent had a motion dated 18/4/2012 pending at the Court of Appeal for extension of time to apply for leave to cross- Appeal against the judgment of the lower Court in Suit No: FHC/L/CS/275/02, which Motion was still pending before the Court of Appeal at the time the 1st respondent commenced the execution of the said judgment by a way of garnishee proceedings.
The Amended Notice of Appeal was very specific and clear on the decision of the Court below being appealed against in this appeal, when it stated inter alia thus:
“Take Notice that the Appellant being dissatisfied with the Ruling/Decision of the Hon. Justice M. N. Yunusa J. sitting at the Federal High Court, Lagos Judicial Division, date 10/3/2014, do hereby appeal to the Court of Appeal upon the Grounds set out in paragraph 3…”
In my finding therefore, there is no appeal against the decision of the Court below granting the Garnishee Order Nisi against the Appellant on 20/5/2013 and the Appellant remained bound by that decision/Order of the Court below. Thus, the bringing in of Ground three, merely by way of amendment, without any Notice of Appeal against the decision of the Court below on 20/5/2013 granting the Garnishee Order Nisi against the Appellant and the distilling of issue one therefrom were therefore, all to to no avail. In Mr. Abiodun Ogunde V. Alhaja Memunat Abdulsalam (2017) LPELR – 41875 (CA) this Court per Georgewill JCA, had reiterated inter alia thus:
“In law parties are bound by the findings of the trial Court, whether rightly or wrongly, not appealed against… However, since there is no cross appeal the Respondent remains bound by the refusal of the Court below to grant some of the reliefs claimed by her against the Appellant. So be it as that is the law that a decision of the Court not appealed against remains valid and subsisting and thus binding on the parties… having not been appealed or cross appealed against would remain binding on the Respondent. It cannot merely be wished away by the Respondent against whom it was made. To set it aside, it must be appealed or cross appealed against it.”
See also Section 241(1) (a) – (v) of the Constitution of Nigeria 1999 (as amended); SPDC Nig. Ltd V. XM. Federal Ltd. & Anor. (2006) 16 NWLR (Pt. 1004) 189; Iyoho V. Effiong & 2 Ors (2007) 11 NWLR (Pt. 1044) 31 @ p. 55; Ogunyade V. Osunkeye (2007) All FWLR (Pt.389) 1175 @ pp. 1206-1207; Onibudo & Ors. V. Akibu & Ors (1982) 13 NSCC 199; LBPC V. Purification Technique Ltd (2012) 52 NSCQR 274 @ p. 309; Williams V. Sanusi (1961) 11 All NLR 334; Onafowokan V. Wema Bank Plc. (2011) 46 NSCQR 181; Oshiomole V. FGN (2005) 1 NWLR (Pt. 907) 414.

In the Appellant’s affidavit in support it had deposed to facts showing the operation of PHCN collections account as to how it is an online real time account from which funds are swept by Inter – Switch to designated account of PHCN with the CBN, and that the Appellant had no control over the funds in that account. It also stated that these facts were not known to the deponent who deposed to the Appellant’s affidavit to show cause made on 19/6/2013 on the strength of which the Court below made the Garnishee Order Absolute. In reaction, the Respondent denied these depositions and stated that the truth of the matter was as deposed to by the Appellant in its affidavit to show cause on 19/6/2013 and that these fresh depositions were mere afterthought. It was in further response that the Appellant filed its further and better affidavit in which it introduced the issue of pendency of an appeal before this Court by PHCN against the judgment of the Court below being sought to be enforced by means of Garnishee proceedings by the Respondent against the Appellant, one of the Bankers to PHCN.

​In an application of the nature of the Appellant’s application seeking to set aside the Order of the Court below it must be shown by credible evidence what are the fresh or new facts or new materials which the Court below ought to consider to change its position from the time it made the Garnishee Order Absolute on 19/6/2013 and such grounds may range from lack of jurisdiction to concealment of material facts to fresh facts available at the time the Order sought to be set aside was made but not to the knowledge of the Appellant. The Appellant relied on fresh facts, though available as at 16/9/2013 but of which the deponent of the Appellant’s affidavit to show cause was unaware of as well as the existence of an appeal against the judgment being sought to be enforced against the Appellant by the Respondent.
I have considered the entirety of the Appellant’s affidavit and further and better affidavit and the Respondent’s counter – affidavit and I find that save the bare assertion as to the operations of online real time account and collection account, no single documentary exhibits were placed before the Court below on such a complicated banking mechanism by the Appellant. I also find that the mere fact that an appeal has been filed against the judgment of the Court below without more is not in law capable of operating as a stay of execution of the valid and subsisting judgment of the Court below being sought to be enforced by the Respondent, the successful party in that litigation.
​I find, and as deposed to clearly by the Respondent, that the Appellant’s application seeking to set aside the Garnishee Order Absolute made against it after over three months on its own affidavit to show cause and admitting to be in custody of the funds of PHCN was clearly an afterthought devoid of any bona – fide. The Appellant also failed miserably to furnish any material on which any favorable finding of facts as to the existence as at 19/6/2013 fresh materials or facts but of which it was unaware as at 19/6/2013 can be made by any reasonable Tribunal or Court of law.
​Here is a party, the Appellant, who had on its volition went voluntarily before the Court below on 19/6/2013 to state categorically on affidavit on facts within its personal knowledge and as authorized by it that it has as at 19/6/2013 in its custody funds standing to the credit of PHCN in the sum of N13, 146, 063. 58 on which the Court below made the Garnishee Order Absolute on 19/6/2013. Incredibly, such a party, as the Appellant, would then wait, and without complying with the valid and subsisting Garnishee Order Absolute of the Court below and without any appeal against the same return to the same Court below on 8/10/2013, that is almost after three month, to request the same Court below to set aside the Garnishee Order Absolute that it had made over three months earlier on the state of affairs voluntarily and willingly supplied to it by the Appellant as the true state of the accounts of PHCN with the Appellant and without any supporting vital pieces of documentary evidence. The Appellant’s story in the application to set aside the Garnishee Order Absolute is bunkum! Simply, things do not just work like that! See Live Stock Feeds Plc. V. Funtua (2005) FWLR (Pt. 286) 753.

In law, once a Garnishee Order Absolute is made by a Court of competent jurisdiction that is indeed the end of the matter and the party against whom the Garnishee Order Absolute is made is under an obligation by the force of law to pay over the amount specified in the Garnishee Order Absolute to the Judgment Creditor. The only option open to such a Garnishee is to appeal and obtain an order of stay of execution of the Garnishee Order Absolute. Thus, the Court which has made the Garnishee Order Absolute is itself precluded and robbed of any further jurisdiction from considering again the matter even if new evidence or arguments are presented to it. See Union Bank Plc. V. Boney Marcus Ind. Limited (2005) 7 SC (Pt. II) 780 @ pp. 74 – 78 per Akintan JSC.
Now, as to the new or fresh facts brought in by the Appellant’s Further and Better Affidavit relating to a pending appeal before this Court against the judgment of the Court below by PHCN, it is, in my finding and I so firmly hold, completely of no moment and do not avail the Appellant in its application to set aside the Garnishee Order Absolute made against it by the Court below on 19/6/2013. This is so because such an appeal does not ipso facto operate in law as a stay of execution of the said judgment unless and until an Order of stay of execution is made by this Court under the Rules of this Court. See Section 17 of the Court of Appeal Act, which provides thus:
“An appeal under this Part of this Act shall not operate as a stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon performance of such conditions as may be imposed in accordance with the Rules of Court.”
See also NCICE V. Mabol Associates Ltd (2009) 4 NWLR (Pt. 1131) 267 @ p. 283.

My lords, in the light of all the findings above, I can now see why the Court below referred to the entire affidavit evidence of the Appellant as being merely speculative, offering no proof of the grave averments of Inter – Switch having electronically moved the funds in the accounts of PHCN to designated Account with the CBN which is the real basis for the application. The issue of pending appeal is not of any moment in the absence of any order of stay of execution since in law pendency of an appeal simpliciter without more does not operate as a stay of execution, which must be specifically sought for and can only be obtained on proof of special or exceptional circumstances why a successful party should by deprived of the fruits of his judgment pending the determination of an appeal. It is never ever granted as of course. In the circumstances therefore, issues two and three are hereby resolved against the Appellant in favour of the Respondent.

​On the whole therefore, having resolved issues two and three against the Appellant in favour of the Respondent, and having earlier discountenanced and struck out Appellant’s issue one and Respondent’s issue one, I hold that this appeal lacks merit and is thus liable to be dismissed. Accordingly, it is hereby dismissed.

In the result, the Ruling of the Federal High Court, Lagos Judicial Division; Coram: Muhammed Nasir Yunusa J., in Suit No. FHC/L/CS/275/2002: Engr. Emmanauel Adeleke V. Power Holding Company of Nigeria Plc. & Ors, delivered on 10/3/2014, wherein the Appellant as Applicant’s application to set aside the Garnishee Order Absolute made on 19/6/2013 by the Court below against the Appellant in favor of the Respondent was dismissed, is hereby affirmed.
There shall be cost of N200, 000 against the Appellant in favour of the Respondent.

FREDERICK OZIAKPONO OHO, J.C.A.: I had a preview of the judgment just delivered by my learned Brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with his reasoning and conclusions in dismissing this Appeal as completely devoid of merit. I abide by the consequential orders.

FOLASHADE AYODEJI OJO, J.C.A.: I had the privilege of reading in draft the just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I agree with his reasoning and the conclusion reached therein. His Lordship has exhaustively and admirably and resolved the issues in this appeal. I only wish to add that the Appellant had a duty to place sufficient materials before the lower Court to enable it exercise its discretion judiciously and judicially.
In response to an order nisi on it, the Appellant filed an affidavit wherein it deposed that the judgment debtor had the sum of N13,146,063.56 standing to his credit in her account maintained with her. The order nisi was consequently made absolute. The Appellant however made a U-turn on the 8th of October, 2013 when she filed an application seeking for an order setting aside the order absolute on the ground that the money attached by the order of Court had been electronically transferred from the judgment debtor’s account into an account with the Central Bank of Nigeria. The Appellant however failed to exhibit the bank statement of the judgment debtor to the application to set aside the order absolute. The Applicant who by that application put the debit balance of the debtor in issue had a duty to prove same.
The Blacks Law Dictionary (9th Edition) defines Statement of Account at its page 1539 as:
“a report issued periodically (usually monthly) by a bank to a customer’s account, including the checks drawn and cleared, deposits made, charges debited and the account balance.”
A bank statement is therefore prima facie evidence of the entries concerning transaction in an account domiciled with a bank. It therefore goes without much ado that the Appellant who claimed the judgment debtor had transferred the outstanding balance in its account to the Central Bank of Nigeria had a duty prove same by tendering the relevant statement of account. The law is settled that where the debit balance of a bank customer becomes an issue, the bank has an obligation to prove the overall debit balance in the customer’s statement of account. See STALZGITTER STAHL VS. TUNDE DOSUNMU INDUSTRIES LIMITED (2010) 11 NWLR (PT. 1206) 589; UNION BANK VS. CHARIVICK NIGERIA LIMITED (2019) LPELR – 4986 (CA) and MAINSTREET BANK LIMITED VS. UNITED BANK FOR AFRICA PLC (2014) LPELR – 24118(CA).
The Appellant who had admitted its indebtedness to the judgment debtor definitely had an uphill task to prove otherwise. He was obliged to place before the lower Court sufficient materials upon which the Court could exercise its discretion in her favour. The Statement of account is definitely one of the materials. The Appellant who sought equity did not come with clean hands. The lower Court was right when it refused the application to set aside the garnishee order absolute.

​I am at one with my brother that this appeal lacks merit and deserve to be dismissed. It is also dismissed by me. I abide by all the orders made in the lead judgment order as to costs.

Appearances:

Nick Omeye, Esq. For Appellant(s)

Femi Atteh, Esq. For Respondent(s)