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Guaranty Trust Bank Plc v. Innoson Nigeria Limited (2014) – CA

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➥ CASE SUMMARY OF:
Guaranty Trust Bank Plc v. Innoson Nigeria Limited (2014) – CA

by PipAr Chima

➥ COURT:
Court of Appeal – CA/I/258/2011

➥ JUDGEMENT DELIVERED ON:
Thursday, the 6th day of February, 2014

➥ AREA(S) OF LAW
Garnishee proceeding;

➥ NOTABLE DICTA
⦿ ESSENCE OF PARTICULARS OF GROUND OF APPEAL
The essence of particulars to a ground of appeal is to explain or substantiate on the ground or grounds. Where the particulars are incorporated and embedded in the ground of appeal, as in this case, it does not make ground 2 incompetent. This method I would term as a “short cut” in drafting and formulating grounds of appeal by the learned counsel to the Appellant. – Uwa, JCA.

⦿ COMPLAINT ON WRONGFUL ADMISSION IS A GROUND OF LAW
It is settled law that a complaint about wrongful admission of evidence is a ground of law alone, a ground of appeal complaining that there was no evidence or no admissible evidence upon which a decision was based, is a ground of law. And an issue on legal interpretation of documents will be a ground of law. – Uwa, JCA.

⦿ PURPOSE OF GARNISHEE PROCEEDING
The purpose of garnishee proceedings is to order a third party to pay direct to the judgment creditor the debt clue or accruing from him to the judgment debtor or so much as may be sufficient to satisfy the amount of the judgment and the costs of the garnishee proceeding. – Uwa, JCA.

⦿ CALL ORAL EVIDENCE WHERE CONTRADICTIONS IN AFFIDAVIT & COUNTER-AFFIDAVIT
The learned counsel to the Appellant had argued that if there are contradictions in the affidavit and counter affidavit the court should not believe one side and reject the other but, call oral evidence to clear the contradictions. Yes, this is the correct position of the law when the affidavits evidence are from both sides but contradictory. – Uwa, JCA.

Available:  Lt. Col. Shehu Ibrahim (Rtd) v. Mercy Ibrahim (2006)

➥ LEAD JUDGEMENT DELIVERED BY:
Nwaoma Uwa, J.C.A.

➥ APPEARANCES
⦿ FOR THE APPELLANT
O.A. Olasope Esq.

⦿ FOR THE RESPONDENT
Prof. J.N.M. Mbadugha Esq.

➥ CASE HISTORY
The background facts on the Appellant’s part are that the Respondent in this case obtained judgment in the sum of N700,220,000.00 against the Nigerian Customs Service Board, thereafter the respondent obtained a garnishee order nisi against the Appellant and other banks named above. The order nisi was for N700, 220,000.00, which was served on the Appellant, the Appellant filed 2 affidavits to show cause, the first was filed on 27/9/11, where the Appellant disclosed that only the sum of N468.50 was standing to the credit of the Nigerian Customs Board (judgment debtor).

It was contended that the trial court gave judgment in favour of the Respondent in the sum of N700, 220,000.00 (Seven Hundred Million, Two Hundred and Twenty Two Thousand) plus 22% interest per annum on the judgment debt from the date of commencement of the suit until satisfaction of the judgment debt. It is against this that the Appellant appealed being dissatisfied with the decision.

➥ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED]

I. Whether in the present circumstances, the learned trial judge was right to have made the garnishee order absolute against the Appellant?

RULING: IN RESPONDENT’S FAVOUR.
A. In Paragraph 3(b) it was averred that Exhibit ‘A’ the statement of account of the Judgment Debtor attached to the Appellant’s affidavit of 16/3/11, was alleged to be false. Exhibit “A” covered the period from 5th January, 2010 – 12th May 2010 (pages 8-11 of the printed records of appeal and 24-27 of the additional records), even though dated 11/3/2011 it clearly did not cover the period in issue, the balance as at 3rd March, 2011.

Available:  Nigerian Bottling Company Plc v. Mr. Demola Olarewaju (2006) - CA

In respect of Exhibit ‘A’ I am of the view that the learned trial judge was right in disregarding same when he held that the said Exhibit (the statement of account) did not address or cover the period relevant to the garnishee proceedings.

At page 66 of the printed records of appeal, the trial court held as follows: “The 5th Garnishee attached Exhibit ‘A’ which is a statement of account. On Exhibit ‘A’ the opening balance date was 5th January, 2010 while the last day was 12th May, 2010 with a balance sum of N468.50 credit.”
Further at page 68: “The Applicant denied by a counter affidavit the depositions of the 5th Garnishee. It is obvious that the content of Exhibit ‘D’ (should be ‘A’) does not sufficiently address the period relevant to the garnishee proceedings. Although, the 5th Garnishee admitted the sum of N4, 238,514.00. I am of the firm view that the 5th Garnishee has not disclosed utmost good faith as regards the proceedings. I shall disregard what is contained in Exhibit ‘A’ filed by the 5th Garnishee.”

B. It is the law that where affidavit evidence is unchallenged and uncontroverted as in the present case, concerning the credit balance of over N5 Billion Naira in the account of Nigerian Customs Services of whom the 1st Judgment debtor is liable for its action and the deposition that as at 3rd March, 2011 when the Appellant was served with the order Nisi, the 1st Judgment debtor had up to Ten Billion Naira (N10 Billion to its credit in an account maintained with the Appellant Garnishee) the court is bound to accept the facts contained therein as deemed to be admitted by the opposite side.

Available:  Julius Berger Nigeria Plc & Anor v. Toki Rainbow Community Bank Ltd (2009)

C. The use the funds are to be made use of or the purpose for which the account was operated is immaterial. The important thing is that the account was operated by and belongs to the 1st Judgment debtor. The learned counsel to the Appellant had argued that the money in the “revenue accounts” belong to the Federal Government transmitted daily into the Federation Account. The N4.2 Million stood as credit. The fact that it was for a particular purpose does not mean it did not belong to the Board, the 1st Judgment Debtor. The money had not yet been transmitted into any account belonging to the Federal Government and the Federal Government would not (and did not) lay claim to the funds in the accounts maintained by the 1st Judgment Debtor. It could only lay claim to the funds on transmission of same to its Federation Account, and I so hold.
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II. Whether the learned trial Judge was to call for oral evidence to settle the contradictions in Appellant affidavits?

RULING: IN RESPONDENT’S FAVOUR.
A. The argument of the learned counsel to the Appellant that oral evidence ought to have been called by the trial court to resolve inconsistencies in its affidavit evidence as to the existence of funds belonging to the 1st Judgment Debtor in its accounts does not hold water, same is discountenanced. The trial court was not duty bound to conduct any inquiry to ascertain the true position as suggested by the learned counsel to the Appellant when both affidavits came from the Appellant. The learned trial judge was right not to have called oral evidence, the need did not arise.

➥ MISCELLANEOUS POINTS

➥ REFERENCED (STATUTE)
Section 83 of the Sheriffs and Civil Process Act.

➥ REFERENCED (CASE)

➥ REFERENCED (OTHERS)

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