ZENITH BANK PLC v. AGBO ADAMSON & ANOR
(2019)LCN/13054(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of April, 2019
CA/J/445/2017
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
ZENITH BANK PLC – Appellant(s)
AND
1. AGBO ADAMSON
2. CENTRAL BANK OF NIGERIA – Respondent(s)
RATIO
WHETHER OR NOT A GROUND OF APPEAL MUST RELATE TO THE DECISION BEING APPEALED AGAINST
A ground of appeal is a complaint against a finding or decision of the trial Court. It must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as issues arise from the grounds of appeal. A ground of appeal must be connected with the controversy between the parties, so also is the issue arising from the ground. Any ground of appeal which does not arise from the ratio of judgment appealed against cannot stand for reason of incompetence ? Bawa Vs Aliyu (2015) 3 NWLR (Pt. 1447) 523 at 545 para. B ? F. See also Okechukwu Vs I.N.E.C. (2014) 17 NWLR (Pt. 1436) 255 at 281-282 para. D-A, Nsirim Vs Amadi (2016) 5 NWLR (Pt. 1504) 42 at 62 para. A-B and P.D.P Vs I.N.E.C (2014) 17 NWLR (Pt. 1437) 525 at 254-255 para. H-A. PER HASSAN, J.C.A.
THE IMPORTANCE OF SERVICE OF COURT PROCESSES
The importance of service of Court processes on a party required to be served, cannot be over emphasized. The essence of service of process on parties in a case is for them to appear and be heard. It is in keeping with the principles of natural justice, that both parties to a case should be given the opportunity to be heard before any orders affecting them are given. Service of Court processes is fundamentally a condition precedence to the exercise of the Court?s jurisdiction to hear and determine the matter brought before it. Without such service of the Court process on the 1st Respondent, it will be against the principle of fair hearing, audi alteram partem, to proceed against him. See Witt & Busch Ltd Vs Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1; FBN Plc Vs T.S.A. Ltd (2010) 15 NWLR (Pt. 1216) 247; Sken Consult Vs Ukey (1988) 2 NWLR (Pt. 108). PER HASSAN, J.C.A.
WHETHER OR NOT A DECISION OF COURT NOT APPEALED AGAINST IS DEEMED ACCEPTABLE AND BIDING ON THE PARTIES
The Appellant has not appealed against this Ruling of the lower Court and the Court of Appeal cannot interfere with the Ruling of a lower Court which there is no notice and grounds of appeal legally filed before it. Even if such were to have been the holding of the lower Court, I have not seen anywhere the Appellant had appealed against such findings of the lower Court. See Emeka Vs Okadigbo (2012) 18 NWLR (Pt. 1331) 55; Duru Vs Federal Republic of Nigeria (2013) 6 NWLR (Pt. 1351) 441 and Anah Vs Anah (2008) 9 NWLR (Pt. 1091) 75. The Supreme Court in Ugo vs Ugo (2017) 18 NWLR (Pt. 1597) 2018 at 230-240 paras. F-A held that a decision of Court not appealed against or challenged is deemed acceptable to and binding on the parties. Until this Ruling of the trial Court is shown to have been set aside, the presumption is that it remains valid and subsisting. See Section 168(1) of Evidence Act, 2011, Bawa Vs Aliyu (2015) 3 NWLR (Pt. 1447) 523 paras. G-H and Shukka Vs Abubakar (2011) 4 NWLR (Pt. 1291) 497. PER HASSAN, J.C.A.
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the Ruling of the Federal High Court sitting in Jos, Plateau State, delivered on the 3rd day of November, 2017 in suit No. FHC/J/CS/1/2017 by Honourable Justice M. H. Kurya.
The 1st Respondent by a Motion Exparte dated the 17th day of March, 2017 prayed the lower Court for an Order Nisi against the 2nd Respondent to attach monies belonging to the Appellant in satisfaction of the monetary judgment of the National Industrial Court of Nigeria. The Order Nisi was granted as reflected at pp. 94-96 of the record of appeal. Upon being served with the Order Nisi, the Appellant filed two applications, seeking to set aside the Order Nisi and the other sought to strike the garnishee proceedings for want of jurisdiction.
Before the hearing of the garnishee proceedings, the Appellant sought to move the applications when the 1st Respondent objected on the ground that a judgment/debtor may only be seen but not to be heard. The learned trial judge in its ruling upheld the objection. The Ruling of the lower Court gave rise to this appeal.
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The initial notice of appeal was filed on 17th November, 2017. However there is an Amended Notice of Appeal dated and filed on the 28th day of March, 2018 and deemed properly filed on the 18th of April, 2018. The Notice of Appeal is anchored by eight grounds of appeal with their particulars and reliefs sought. From the eight grounds of appeal, two issues were formulated for determination.
In the Appellant?s brief of argument settled by Ayodele A. Adewole Esq. dated and filed on the 28th day of March, 2018 two issues were distilled for determination thus:
1.”Whether the learned trial judge was in error when he refused to hear and determine the Appellant?s applications dated 16th March, 2017 and 17th March, 2017 before the lower Court? (Grounds 1, 2, 3, 6 and 7)
2.?Whether the garnishee Order nisi made by the lower Court dated 9th March, 2017 is incompetent and liable to be set aside.? (Grounds 4, 5 and 8)
?The Appellant?s Amended Reply Brief was dated 15th January, 2019 and filed on the 16th day of January, 2019. Counsel adopted both briefs and urged us to allow the appeal.
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The 1st Respondent?s brief was dated and filed on the 12th of October, 2018. The brief settled by Mrs. Eugenia N. Eze Esq. also has two issues identified.
The issues read:
i. ?Whether the learned trial judge was right when he held that the Appellant (Judgment/debtor at lower Court) cannot be heard in a garnishee proceedings (Grounds 1, 2, 3, 6 and 7)
ii. ?Whether the Order Nisi made by the Court on the 9th of March, 2017 is competent and valid in law.? (Grounds 4, 5 and 8)
After adoption of the brief, he urged us to dismiss the appeal.
The 2nd Respondent did not file any brief.
Indeed it is curious for the two issues to be formulated from eight grounds of appeal. It is not the number of grounds of appeal and issues that determine the success of an appeal but the quality of the grounds of appeal and the issues formulated therefrom as well as the argument thereon.
Issue one of the Appellant has been set out above. I shall at the point of repetition set it out again at this stage
?Whether the learned trial judge was in error when he refused to hear and determine the Appellant?s applications dated 16th March, 2017
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and 17th March, 2017 before the lower Court.?
The issue is stated by the Appellant to be derived from grounds 1, 2, 3, 6 and 7. The grounds without their particulars read:
Ground 1- ?The learned trial judge erred in law when he failed to consider the issue canvassed by the Appellant that a Court is duty bound to consider all applications filed in the course of proceedings no matter how unmeritorious they may be.?
Ground 2 ? ?The learned trial judge erred in law when he held that the Appellant could only be seen but not heard in the garnishee proceedings before the lower Court.?
Ground 3 ? ?The learned trial judge erred in law when he misconceived the Appellant?s case by holding that the decision in Nigerian Breweries Plc vs Dumuje (2016) 8 NWLR (Pt. 1515) 356 did not permit the Appellant to challenge the judgment of the National Industrial Court?
Ground 6 ? ?The learned trial judge misdirected himself in law when he held thus: ?From the oral arguments and contents of the affidavit evidence before the Court, I am of the view that I have enough
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to pronounce on the issue. The substantive suit is same as the interlocutory, to wit, whether the judgment debtor can be heard in garnishee proceedings. I came to the conclusion that the judgment debtor cannot be heard in an independent and separate Garnishee proceedings.?
Ground 7 ? The learned trial judge erred in law when he held thus: “To buttress more on the above point, the learned Counsel to the judgment/debtor did inform the Court that they filed a reply on points of law, having responded on points of law upon receipt of the judgment creditor?s reply to the effect that they cannot be heard. By that, issue has been joined as he claimed. That cannot hold water also as the learned Counsel to the judgment creditor had denied in open Court ever been served with the judgment debtor?s reply on points of law, so I hold that issues have not been joined. Therefore the issue of deciding a substantive suit at an interlocutory stage has not arisen.?
?Looking at issue one and the grounds from which it was derived, it is only grounds 1 and 7 that have relation with issue one, because the basis of the refusal of the lower Court to hear
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the applications of the Appellant was as a result of the failure of the Appellant to serve the 1st Respondent with its reply on points of law despite its attention drawn to that effect. Grounds 2, 3 and 6 are therefore struck out. This is because a ground of which does not fit into the decision of the lower Court appealed against is incompetent and liable to be struck out. However as regards grounds 1 and 7, I am of the view that they are properly derived from the portion of the decision appealed against, and therefore competent to sustain the appeal.
Issue 2- ?Whether the garnishee Order nisi made by the lower Court dated 9th March, 2017 is incompetent and liable to be set aside.? It is derived from grounds, 4, 5 and 8 of the Notice of Appeal.
Ground 4- ?The learned trial judge erred in law when he failed to hold that the garnishee Order nisi was incompetent and liable to be set aside having been obtained by misrepresentation of facts?.
Ground 5 ?The learned trial Judge erred in law when he failed to set aside the garnishee order nisi on the ground that the 1st Respondent had engaged in forum shopping.?
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Ground 8 ? ?The learned trial judge erred in law when he made the garnishee order nisi against the Appellant, even though the party sued before the National Industrial Court was Zenith International Bank Plc.?
I have perused the Ruling of the trial Court reflected at pp. 295-301 of the record, the issue two formulated from grounds 4, 5 and 8 of the Notice of Appeal does not arise from the Ruling of the trial Court. A ground of appeal is a complaint against a finding or decision of the trial Court. It must relate to the decision being appealed against and should constitute a challenge to the ratio of the decision. Grounds of appeal are not formulated in abstract. They must arise from the judgment in the same way as issues arise from the grounds of appeal. A ground of appeal must be connected with the controversy between the parties, so also is the issue arising from the ground. Any ground of appeal which does not arise from the ratio of judgment appealed against cannot stand for reason of incompetence ? Bawa Vs Aliyu (2015) 3 NWLR (Pt. 1447) 523 at 545 para. B ? F. See also Okechukwu Vs I.N.E.C. (2014) 17 NWLR (Pt. 1436) 255
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at 281-282 para. D-A, Nsirim Vs Amadi (2016) 5 NWLR (Pt. 1504) 42 at 62 para. A-B and P.D.P Vs I.N.E.C (2014) 17 NWLR (Pt. 1437) 525 at 254-255 para. H-A.
In the instant case the grounds of appeal having found to be incompetent, they are struck out along with issue two distilled from it.
Issue two having been struck out, the Appellant is left with issue one for determination. The Respondent?s issue two also distilled from grounds 4, 5 and 8 is also struck out. I shall be guided by issue one of the Appellant in resolving the appeal.
ISSUE ONE
?Whether the learned trial judge was in error when he refused to hear and determine the Appellant?s applications dated 16th March, 2017 and 17th March, 2017 before the lower Court.?
Arguing this issue, learned Counsel for the Appellant submitted that it is a very settled principle of law that a Court is duty bound to consider all applications that have been properly filed before it. He referred to General Electric Co. Vs Akande (2012) 16 NWLR (Pt. 1327) 593 at 611 para., Dingyadi Vs INEC (No. I) (2010) 18 NWLR (Pt. 1224) 1 at 53 paras. E-H and Central Bank of Nigeria Vs
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Shipping Co. sara B.V. (No. 2) (2015) 11 NWLR (Pt. 1469) 1 at 22 para. G, among others.
Relying on Dingyadi Vs INEC (supra), it is submitted that, notwithstanding how unmeritorious or frivolous the application may appear to be, the Court owe a duty to entertain and decide on the merit of an application and failure of which is a denial of fair hearing.
The Appellant contended that, upon being served with the garnishee Order nisi made by the lower Court, it filed a motion on notice seeking to set aside the order nisi. Thereafter the Appellant filed a Notice of preliminary objection challenging the jurisdiction of the lower Court. That on the 7th of July, 2017 when the matter came up before the trial judge, Appellant sought to move both applications when the 1st Respondent objected that a judgment/debtor in garnishee proceedings can only be seen but cannot be heard. Also that the 1st Respondent having replied to the Appellant?s application, the Appellant filed a reply on point of law to which the 1st Respondent said he was not served with the Reply on point of law.
Learned Counsel for the Appellant argued that having filed a reply on point
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of law to the Respondent?s response on its application, issues have been joined between the parties to enable the trial Court entertain its application and preliminary objection. That refusal of the trial judge to hear the application on their merits on the strength of the 1st Respondent?s oral objection, the lower Court had determined one of the main issues at interlocutory stage, which is against the established principle of law. He relied on this submission in Oduko Vs Govt, Ebonyi State (2009) 9 NWLR (Pt. 1147) 439 at 460-461 paras. H-B and John Holt?s case (1963) 2 SCNLR 383.
?Submitting further, that the oral objection taken against the hearing of the applications ought to be considered at a stage of hearing the applications of the Appellant. That if the trial judge had decided on the oral objection, then there was nothing to decide on the application where same issue had been raised and canvassed for and against both parties in their written addresses. Counsel referred to the reasoning of the trial Court at page 300 of the record influenced by the points that judgment debtor cannot be heard in garnishee proceedings and the non
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service of the Appellant?s reply on point of law to the 1st Respondent. That the trial judge held that the Supreme Court had made a lot of pronouncements on the point that the judgment debtor cannot be heard in garnishee proceedings. That the trial judge ought to be bound by the decision of this Court in Nigeria Breweries Plc vs Dumuje (2016) 8 NWLR (Pt. 1515) 536 which is of recent, as there is no decision of the Supreme Court on the point whether a judgment debtor is to be seen but not to be heard on garnishee proceedings.
On the non service of the reply on point of law on the 1st Respondent, it is submitted for the Appellant that failure to serve the Court process is not a ground for punishing the Appellant on its right to be heard in the proceedings before the lower Court. Relying on the case of SBM services (Nig.) Ltd Vs Okon (2004) 9 NWLR (Pt. 879) 529 at 551 paras. D-G, it is submitted that the duty to serve Court processes is that of the Registry of Court and not the parties.
We are urged to resolve in favour of the Appellant.
?Learned Counsel for the 1st Respondent submitted in response that it is a settled law that a Court is
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expected to hear all applications pending in Court, but the Appellant got carried away by the case of Dingyadi Vs INEC (No. I) (2010) 15 NWLR (Pt. 1224) which is distinguishable with the present case. It is submitted that the Appellant has not demonstrated how he was denied fair hearing. Relying on the case ofEjeka Vs State (2003) 7 NWLR (Pt. 8190 408 at 421 paras. C-E, it is submitted that a party who alleged that he was denied fair hearing must prove specific acts of such denial. That the Appellant got it wrong when he urged this Court to hold that the lower Court was wrong for not hearing his applications, and the authorities cited in support of his argument are inapplicable to the instant case.
It is also argued on behalf of the 1st Respondent that the trial judge was right when he held that the judgment/debtor is not entitled to be heard in garnishee proceedings and urged this Court to so hold.
The issue for consideration is whether the trial Court was right in refusing to hear the Appellant?s motion and preliminary objection. It is the normal practice of Courts to dispose off, all applications before it. The Appellant?s contention
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is that he filed a motion on Notice before the lower Court dated 16th March, 2017 to have the garnishee nisi made against him, set aside and on 17th March, it filed a Notice of Preliminary objection challenging the jurisdiction of the trial Court. On the date fixed for hearing of the application, the Appellant sought to move the applications when the 1st Respondent objected that a judgment/debtor cannot be heard in garnishee proceedings and that the 1st Respondent was also not served with the Appellant?s reply on point of law.
At page 300 of the record, the trial judge in its Ruling held:
?From the oral arguments and the content of the affidavit evidence before the Court, I am of the view that I have enough to pronounce on the issue. The substantive suit is same as the interlocutory to wit, whether the judgment debtor can be heard in garnishee proceedings. I came to the conclusion on this issue that it is trite law that the judgment debtor cannot be heard in an independent and separate Garnishee proceedings. To buttress more on the above point, the learned Counsel to the judgment debtor did inform the Court that they have replied on
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points of law, having responded on point of law upon the receipt of the judgment creditor?s reply to the effect that they cannot be heard. By that, issues have been joined as claimed. That cannot hold water, also as the learned Counsel to the judgment creditor had denied in open Court ever been served with the judgment debtor?s reply on point of law. I so hold that issue have not been joined. Therefore the issue of deciding a substantive suit at an interlocutory stage has not arisen?.
The complaint of the Appellant was the refusal of the lower Court to hear the two pending applications before proceeding to deliver a ruling in the matter. The applications were motion to set aside the garnishee order nisi made against it allegedly obtained by misrepresentation of facts and a preliminary objection challenging the jurisdiction of the lower Court to entertain the garnishee proceedings. The lower Court stated the reason for the refusal to entertain the applications as shown in its Ruling reproduced above. That the 1st Respondent having not been served with the Appellant?s reply on point of law issues have not been joined.
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The importance of service of Court processes on a party required to be served, cannot be over emphasized. The essence of service of process on parties in a case is for them to appear and be heard. It is in keeping with the principles of natural justice, that both parties to a case should be given the opportunity to be heard before any orders affecting them are given. Service of Court processes is fundamentally a condition precedence to the exercise of the Court?s jurisdiction to hear and determine the matter brought before it. Without such service of the Court process on the 1st Respondent, it will be against the principle of fair hearing, audi alteram partem, to proceed against him. See Witt & Busch Ltd Vs Dale Power Systems Plc (2007) 17 NWLR (Pt. 1062) 1; FBN Plc Vs T.S.A. Ltd (2010) 15 NWLR (Pt. 1216) 247; Sken Consult Vs Ukey (1988) 2 NWLR (Pt. 108).
Counsel to Appellant has not impugned the reasons given by the lower Court for not considering the applications, and thus the attack by the Appellant on the trial judge?s refusal to hear the application is baseless and misconceived.
?It is also the complaint of the Appellant that the lower Court
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had decided the substantive suit at interlocutory stage when it held that a judgment debtor cannot be heard in garnishee proceedings. The Appellant has not appealed against this Ruling of the lower Court and the Court of Appeal cannot interfere with the Ruling of a lower Court which there is no notice and grounds of appeal legally filed before it. Even if such were to have been the holding of the lower Court, I have not seen anywhere the Appellant had appealed against such findings of the lower Court. See Emeka Vs Okadigbo (2012) 18 NWLR (Pt. 1331) 55; Duru Vs Federal Republic of Nigeria (2013) 6 NWLR (Pt. 1351) 441 and Anah Vs Anah (2008) 9 NWLR (Pt. 1091) 75. The Supreme Court in Ugo vs Ugo (2017) 18 NWLR (Pt. 1597) 2018 at 230-240 paras. F-A held that a decision of Court not appealed against or challenged is deemed acceptable to and binding on the parties. Until this Ruling of the trial Court is shown to have been set aside, the presumption is that it remains valid and subsisting. See Section 168(1) of Evidence Act, 2011, Bawa Vs Aliyu (2015) 3 NWLR (Pt. 1447) 523 paras. G-H and Shukka Vs Abubakar (2011) 4 NWLR (Pt. 1291) 497. In the instant case, the Appellant
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having not appealed against such findings the Appellant cannot lawfully raise the issue without leave of the Court sought and obtained. The law is trite, a finding against which there is no appeal remains binding and conclusive.
The conclusion is that the appeal is unmeritorious and it is dismissed. The Ruling of the lower Court delivered on the 3rd of November, 2017 is hereby affirmed.
N100,000.00 costs for 1st Respondent against the Appellant.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the Judgment of my learned brother, Hassan J.C.A just delivered. I agree with the reasoning and conclusion arrived thereat, that the appeal lacks merit and ought to be dismissed. I too dismiss the appeal and abide by the consequential orders contained in the lead Ruling, inclusive of costs.
BOLOUKUROMO MOSES UGO J.C.A.: I had a preview of the judgment of my learned brother T. Y. HASSAN, J.C.A. and I am in agreement that the appeal be dismissed for lacking in merit.
?I abide the order as to costs.
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Appearances:
A. A. Adewole, Esq. with him, Mrs. N.O. Adewole, Esq.For Appellant(s)
Mrs. Eugenia N. Eze with him, D.S. Oge, Esq. for 1st Respondent.
Leo M. Ebi, Esq. holding the brief of N. Ekanem, SAN for 2nd RespondentFor Respondent(s)
Appearances
A. A. Adewole, Esq. with him, Mrs. N.O. Adewole, Esq.For Appellant
AND
Mrs. Eugenia N. Eze with him, D.S. Oge, Esq. for 1st Respondent.
Leo M. Ebi, Esq. holding the brief of N. Ekanem, SAN for 2nd RespondentFor Respondent
