➥ CASE SUMMARY OF:
UBA Plc v. Uche & Ors (CA/A/869/2018, February 25 2022)
by Branham Chima Esq.
➥ SUBJECT MATTER(S)
- Garnishee orders.
➥ CASE FACT/HISTORY
The brief fact of the case is that one Mr. Rufus Obiezie was shot dead unlawfully by a Nigerian Police officer at Nyanya market Abuja; the trial Court found the 2nd to 4th Respondents liable and entered judgment in favour of the 1st Respondent on 1st July, 2014 against the 2nd to 4th Respondents.
The trial Court awarded the sum of N70,000,000.00 (Seventy million Naira) only and costs of N50,000.00 (Fifty thousand Naira) only, in favour of the Respondents against the 2nd to 4th Respondents.
The 1st Respondent initiated a garnishee proceeding wherein he filed a Motion Ex-parte and prayed the Court for:
“A Garnishee Order Nisi attaching monies in 1st Garnishee bank/Appellant, account No: 1005514590, 1015563155, 2036870847, 2023097252 and 1014828604 and; 2nd Garnishee/SKYE BANK PLC: Bank account No: 1770544221 And; 3rd Garnishee bank account No: 2015950936, 2017655572, 2015950963 belonging to the 1st and 2nd Judgment debtors; that is 2nd and 3rd Respondents in whatever name called jointly or separately or any other account with Garnishee banks.”
The trial Court granted the above order nisi, and made the Order absolute as follows:
“Accordingly, the nisi Orders of this Court are hereby made absolute in the judgment debt due since July, 2014 with N100,000.00 costs to be paid from U.B.A PLC. Account No: 1016482974 or U.B.A Account No: 1001520687 forthwith.”
The Appellant initiated this appeal against the decision of the Federal High Court, Abuja, contained in the ruling of Motion NO: FCT/HC/ABJ/CS/411/2012; delivered by A. F. A Ademola J. (as he then was) on 17th March, 2016.
➥ ISSUE(S)
I. Whether it was proper for the trial Judge to prefer oral as against documentary evidence as to the ownership of the Accounts in question?
➥ RESOLUTION(S) OF ISSUES
[APPEAL DISMISSED]
↪️ ISSUE 1: IN RESPONDENT’S FAVOUR.
[‘I have seen from pages 24 to 27 of the records of appeal the garnishee order nisi ordered by the trial Court, upon hearing the 1st Respondent’s Ex-parte Motion filed on 20th April, 2015; wherein the trial Court ordered as follows:
“That a Garnishee Order Nisi is made attaching monies in the 1st Garnishee bank account No: 1005514590, 1015563155, 2036870847, 2023097252 and 1014828604 and 2nd Garnishee bank account No: 1770544221 and 3rd Garnishee bank No: 2015950936, 2017655572, 2015950963 belonging to the 1st and 2nd Judgment debtors in whatever name called jointly or separately or any other account with Garnishee banks.”
The main grouse of the Appellant is that the 2 accounts that is Exhibits A and B which the trial Court made the Order Nisi Absolute, do not belong to the judgment debtor and is not among the accounts listed above and therefore the trial Court lacks the jurisdiction to make the Order Nisi Absolute.
Let me first address the argument of the Appellant that Exhibits A and B were not listed in the order nisi made by the trial Court and cannot be made absolute.’
‘I will be correct to say that the 1st Respondent’s Ex-parte Motion for Garnishee Order nisi is an originating process which confers jurisdiction on the trial Court. The law has been established to the effect that it does not lie within the power of a Court to grant a relief not claimed by a party in his pleadings. See: EDEBIRI V. EDEBIRI (1997) 49 LRCN 919 AT 940; ODUKWE V. OGUNBIYI (1998) 6 SCNJ 102 AND EYO OGBONI V. OJA OJAH (1996) 6 SCNJ 140. What I am trying to say in essence is that a relief which is inconsistent with the claim should not be granted because the Court should not be seen as a charitable institution. See: SULE EYIGEBE V. MUSA (2013) LPELR-20522(SC).’
THE APPELLANT FAILED TO SHOW CAUSE WHY THE ORDER NISI SHOULD NOT BE MADE
‘The 1st Respondent argued that Exhibits A and B belong to the 2nd and 3rd Respondents and in the proceedings of 3rd March, 2015 as seen at page 106 of the records of appeal; he applied for an Order of the Court for the production of details of Exhibits A and B. The said application was granted without objection. The 1st Respondent by that was deemed to have discharged the burden of proof that Exhibits A and B belong to the 2nd and 3rd Respondents and so; the burden of prove swung to the Appellant to show otherwise.
The Appellant in an attempt to discharge the burden of who owns the accounts in Exhibits A and B filed a further and better affidavit, deposed to by one Armstrong Ogochukwu as seen at pages 79 to 82 of the records of appeal; wherein in paragraph 4 he deposed thus:
“That the 1st Garnishee has filed the Statement of accounts in respect of the following: 1016482974 titled Corporate Holding Account has a balance of N149,751,180.85 as at 16th March, 2016. The copy of the statement of account is here with filed as Exhibit A.
Account No: 1001520687 belongs to Inspector General of Police Personnel Account has a balance of N14,000,000.00 as at 16th March, 2016. The copy of the statement of account is herewith filed as Exhibit B.”
In the proceedings of 17th March, 2016; the Appellant emphasized that Exhibits A and B do not belong to any of the Judgment Debtors. Let me bring to remembrance that, the purpose of the Appellant’s further and better affidavit is to show cause; that is to proffer satisfactory reason why the order nisi should not be made absolute on Exhibits A and B. Exhibit A reads Corporate Holding Account and Federal Ministry of Police Affairs beside it. The Appellant’s explanation to this, is that, the Federal Ministry of Police Affairs is the address of Exhibit A. What would agitate a sound mind is, who is the corporate body that owns Exhibit A with the above address? This question was asked by the trial Court and Armstrong Ogochukwu replied:
“I don’t know” See page 128 of the records of appeal.
When asked by the trial Court who owns Exhibit B, he replied: “Inspector General of Police Personnel Account. ”
The Appellant by this clarification, in my view, failed to satisfactorily show cause why the Order Nisi could not be made absolute on Exhibits A and B.’
‘Contrary to the argument of the learned counsel for the Appellant that the trial Court failed to consider Exhibits A and B, but rather preferred the oral testimony of the witness against documentary evidence; the proceedings of 17th March, 2016; referred to above reveals otherwise. The learned trial Judge to ensure proper evaluation of Exhibits A and B; and to be properly guided on the right Orders to make; had to ask the Appellant’s witness for oral elucidation of the ownership of the said Exhibits, particularly Exhibit A which read Corporate Holding Account and Federal Ministry of Police Affairs beside it. The proceedings of the trial Court in no way was suggestive that the learned trial Judge preferred oral evidence to documentary evidence. The documentary evidence, particularly Exhibit A is ambiguous and therefore requires an explication which was what the trial Court simply did and nothing more. The failure of the Appellant through its witness Armstrong Ogochukwu to prove that Exhibits A and B do not belong to the 2nd and 3rd Respondents points to the absolute fact that the said Exhibits are owned by the 2nd and 3rd Respondents. Having come to this conclusion and for the position I held earlier that the 1st Respondent’s Ex-parte motion for Garnishee Order nisi covers all the Judgment Debtors’ account with the Appellant; I hold that the trial Court has the jurisdiction to make the Order Nisi Absolute on Exhibits A and B.’]
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.
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✓ DECISION:
‘The appeal lacks merit and the same is hereby dismissed. I uphold the decision of the Federal High Court, Abuja, in the ruling of Motion NO: FCT/HC/ABJ/CS/411/2012; delivered on 17th March, 2016. I award the cost of N200,000.00 (Two hundred thousand Naira) only, against the Appellant and in favour of the 1st Respondent.’
➥ FURTHER DICTA:
⦿
➥ LEAD JUDGEMENT DELIVERED BY:
Uchechukwu Onyemenam, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT(S)
G.O. Ofodile Okafor, SAN.
⦿ FOR THE RESPONDENT(S)
Kevin Emeka Okoro Esq., for 1st Appellant;
Idris Abubakar Esq., for 2nd – 4th Respondents.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
⦿ JURISDICTION IS THE AUTHORITY OF A COURT TO ENTERTAIN A MATTER BROUGHT BEFORE IT
Jurisdiction is the lifeblood of any adjudication. It is the foundation of every cause or matter before a Court of law. It is a matter of strict law donated by the Constitution and Statutes. Jurisdiction can also be described as the authority of a Court to entertain a matter brought before it. — U. Onyemenam JCA.
⦿ HOW GARNISHEE ORDERS ARE MADE
Applications for garnishee proceedings are made to the Court by the judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the Judgment Creditor within a stated time unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made. If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the Judgment Creditor. See: UNION BANK OF NIGERIA PLC V. BONEY MARCUS IND. LIMITED & ORS (2005) LPELR-3394(SC); UNION BANK OF NIGERIA PLC V. BONEY MARCUS INDUSTRIES LTD & ORS (2005) 13 NWLR (PT. 943) 654, CHOICE INVESTMENTS LTD V. JEROMNIMON (MIDLAND BANK LTD. GARNISHEE) (1981) 1 ALL ER 225 AT 328, GUARANTY TRUST BANK PLC V. INNOSON NIG. LTD (2017) LPELR-42368 (SC); JENKINS DUVIE GIANE GWEDE V. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC). — U. Onyemenam JCA.
⦿ ORDER NISI AFFORDS THE THIRD PARTY AN OPPORTUNITY TO EXPLAIN WHY
By the order nisi, the third party i.e. the garnishee is given an opportunity to tell the Court, in the enforcement or garnishee proceedings, why the order should not be made absolute by directing him to pay the judgment debt or part thereof to the Judgment Creditor. In other words, garnishee order nisi affords the third party (the garnishee) an opportunity to explain or give his reason to the Court why he should not be directed to bear the burden of paying the judgment debt (on behalf of the judgment debtor) to the Judgment Creditor. See: UNION BANK OF NIGERIA PLC. V. BONEY MARCUS INDUSTRIES LTD (2005) ALL FWLR (PT. 278) 1037, (2005) 13 NWLR (PT. 943) 654 AT 666; EMMANUEL OBOH & ANOR V. THE NIGERIA FOOTBALL LEAGUE LIMITED & ORS (2020) LPELR-55520(SC). — U. Onyemenam JCA.
⦿ RESPONDENT’S TRADITIONAL ROLE IS TO SUPPORT THE DECISION OF THE LOWER COURT
I would however like to make a brief remark on the 2nd, 3rd and 4th Respondents’ Brief of Argument. In the said Brief, rather than canvass arguments in support of the judgment, the 2nd, 3rd and 4th Respondents’ counsel made submissions in support of the Appellant’s position in the appeal and urged the Court to resolve the appeal in favour of the Appellant. Now, the Apex Court has stated in a plethora of decided authorities that the traditional role of a Respondent to an appeal is to defend the judgment appealed against. If he wants to depart from this role by attacking the said judgment in any way, he is obliged by the Rules to file a cross appeal. See Lafia Local Government vs. The Executive Government Nasarawa State & Ors (2012) LPELR- 20602 (SC); Dangana & Anor vs. Usman & Ors (2012) LPELR- 25012 (SC); Kayili vs. Yilbuk & Ors (2015) LPELR-24323 (SC); Agi vs. PDP & Ors (2016) LPELR-42578 (SC); Cameroon Airlines vs. Otutuizu (2011) LPELR-827 (SC); PDP vs. Oranezi (2017) LPELR-43471 (SC). Where, however, a Respondent to an appeal is satisfied with the judgment appealed against and does not intend to file a cross appeal to attack the judgment, the best thing for him to do is to remain mute and not depart from his traditional role by supporting the Appellant. In the circumstance, the role played by the 2nd, 3rd and 4th Respondents in this appeal is ignoble and arguments canvassed by them in their Brief of Argument amounts to freaky advocacy liable to be discountenanced. – M. I. Sirajo JCA.
➥ REFERENCED (OTHERS)
