Access Bank Plc V. Nkoyo Ekpe Bassey (2016)
LawGlobal-Hub Lead Judgment Report
PAUL OBI ELECHI, J.C.A.
This is an appeal against the Judgment of the High Court of Akwa Ibom State coram Honourable Justice Bassey F. Etuk delivered on the 23rd April, 2012 in suit No. HOR/2/2012. In the said suit, His Lordship entered Judgment in the sum of N150,000.00 plus the cost of N3,000.00 in favour of the 1st Respondent against the 8th Respondent of which the commissioner of Police (2nd Respondent) was the 6th Respondent at the Lower Court.
On the 15th February, 2013, the Lower Court at the instance of the 1st Respondent as Judgment Creditor, granted an order Nisi, garnishing the bank account numbers 0003899348 and 0003905577 said to be held at the Appellant bank by the 5th, 6th, 7th and 8th Judgment Debtors for the Judgment sum of N153,000.00, plus the cost of the Garnishee proceeding at another N100,000.00, thus totaling N253,000.00. The Garnishee also covered certain accounts said to be held by the same 6th – 8th Judgment Debtors at First Bank of Nigeria PLC (who was the 1st Garnishee but this appeal however is only concerned with the 2nd Garnishee – Appellant.
On the 21st March
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2013, the Appellant herein as Garnishee became aware of the proceedings for the first time when it was served with the Order Nisi. As a result the Appellant filed a Garnishee’s Affidavit to show cause, showing, in summary that of the two account number 0003899348 was in debt to the tune of N284.21, while the second account number 0003905577 had since been closed by the 2nd Respondents instructions. The affidavit went further to exhibit the statement of account number 0003899348 as Exhibit AB1.
The 1st Respondent on his own filed a counter-affidavit as Judgment Creditor contending therein that the account number 0003905577 was active and that the 2nd Respondent herein had never written to the Appellant to close that account. The Appellant, being thus challenged responded with a further affidavit to show cause wherein it was reiterated that the 2nd Respondent had indeed instructed the closure of the account and, this time exhibited the letter instructing the closure of Exhibit AB2.
Eventually on the 18th June, 2013, their respective Counsel adopted their processes. While the Appellant urged the Court to discharge the Order Nisi, the 1st Respondent
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urged the Court to make the Garnishee nisi absolute.
On the 5th July, 2013, the trial Court delivered a Ruling and made the Order of Garnishee Nisi absolute. The Appellant has therefore brought this appeal seeking for the reversal of the Courts order.
From the grounds 1 & 2 of the Notice of Appeal, the Appellant distilled one issue for determination thus:
“Was the Court below right when despite all the evidence before it, it held that the Appellant had not honestly made disclosures to guide the Court in determining whether or not the Order Nisi should be set aside and that “sufficient” reason had not been made out by the Appellant, and proceeded on that basis to make the Order absolute”.
According to Learned Appellants Counsel, the Order absolute by the trial Judge is impossible to justify as per the evidence on record in the two bank accounts herein before mentioned, Learned Appellant Counsel contended that this appeal is straight forward on its own. This, he stated may revolve around a few questions: Did the Appellant make honest disclosures of the Garnishee proceedings? Did it discharge its legal burden in this matter?
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Did it satisfactorily explain its position vis-a-vis the accounts sought to be garnisheed? In the consideration of the Appellants Counsel, the Appellant discharged its legal burden and that the answers to the above questions are all in the affirmative. On that basis, he contended that the Learned trial Judge was wrong to have made the order absolute since the 1st Respondent asserted the existence of Account No. 0003905577, it was her duty to prove same as per Section 131 of the Evidence Act 2011 but she could not prove same. It was at that stage that the Order Nisi ought to have been discharged but the Court below did not do so even after the evidence adduced in its further affidavit and Exhibit AB2.
From the records, it is clear that Account No. 0003800348 has no credit absolutely in its favour and the Account No. 000390577 is now defunct as it has since been closed. It is therefore, surprising how the trial Court made an Order absolute on that account. The reason being that in Garnishee proceedings where there is no debt due to the Judgment debtor in the Garnishee’s hands, then there is nothing to pay over and once this fact has been disclosed as
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in this case, that should be the end of the matter. The Court below has in effect, Ordered the Appellant to pay the 2nd Respondent Judgment debt from the Appellants own resources when the said Appellant is not in any way concerned with the complaints in the Judgment sought to be enforced. This Learned Appellant’s counsel submitted, is unjust and unknown to our legal jurisprudence.
In view of the above, Appellants Counsel submitted that the Court below was wrong when it held that the Appellant had not adequately explained why payment should not be made to the Judgment Creditor and on that basis proceeded to make an Order to Garnishee absolute. He then urged the Court to resolve the lone issue in this appeal in their favour. Also to set-aside the Order of Garnishee absolute and substitute same with an Order discharging the Garnishee Nisi.
Consequently, he urged the Court to allow the appeal.
On the part of the 1st Respondent’s, counsel urged the Court to hold that the Appellant’s issue for determination is incompetent as it clearly shows the premise to be complaint against the trial Courts reason for deciding and not the decision itself. He
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then urged the Court to strike out the appeal as an Appellate Court cannot interfere with a trial Court’s decision simply because an Appellant does not agree with the trial Court’s reasoning.
Learned Counsel stated that unlike Account No. 0003899348 where the Appellant tendered Exhibit AB2 (a letter said to have been written by the 2nd Respondent to the Appellant directing that the account be closed. Unlike in Account No. 0003899348 have Appellant tendered Exhibit AB1 which is a comprehensive statement of account giving details of that particular account but in Account No. 0003905577 the Appellants omitted to tender such statement of account. He referred the Court to Section 167(d) of the Evidence Act 2011. Also that Section 79(2) of the Sheriffs and Civil Process Law of Akwa Ibom State Cap. 119, the Appellant had a legal obligation to divulge every fact pertaining to the account attended by Order Nisi. Failure to tender the statement of account in Account No. 0003905577 or any document showing a real closure of the said account, the Appellant he submitted has failed to discharge his disclosure obligation and therefore, the trial Court was right when it
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held that the Appellant had failed to explain why the 1st Respondent should not be paid. It is the further contention of the Respondent’s Counsel that in the absence of direct evidence of the closure of account, the Appellant is legally bound to pay – over 2nd Respondents fund in the account to the 1st Respondent. It is also Learned Counsel’s submission that the 1st Respondents additional evidence shows the legal impossibility of 2nd Respondent or Appellant closing the account as their pre-existed an Order Nisi placing a lien on the said account.
In a concluding remark, Learned Counsel submitted that since the Lower Court clearly evaluated the evidence before, it is therefore not the business of the Court to substitute its own views for that of the trial Court as the decision is not perverse or unsupported by the evidence on record. Consequently, he urged the Court to dismiss the appeal.
In a reply brief filed by the Appellant on the 20/12/2013 and deemed on the 30/6/2014, Learned counsel amongst other replies made urged the Court to reject the additional evidence filed by the 1st Respondent as no leave was granted for same. Also that
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reliance on such evidence in that hearing from the Appellants regarding Exhibits A & B would amount to the violation of the principle of audi alteran parten and most importantly is that the account name in question is not a party to this appeal. He then urged the Court to allow the appeal and grant all the reliefs sought by the Appellant.
The 1st Respondent in his Respondent brief had contended that the Appellants lone issue for determination is incompetent as it complains against the trial Court’s reasons for deciding and not the decision itself. On that basis, he urged the Court to strike out the appeal.
From the above contention of the 1st Respondent it is apparent that an issue of Preliminary objection has been raised by the 1st Respondent. It is trite to state that a Court in which a Preliminary objection is raised is duty bound to first express in writing whether it agrees with the Preliminary objection or not. It is a cardinal principle of the administration of justice to let a party know the fate of his application whether properly or improperly brought before the Court. It will amount to unfair hearing to ignore an objection raised by a
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party or his Counsel against any step in the proceedings. See NWANWATA v. ESUMEI (1998) 8 NWLR (PT. 563) 650 at 666, TANBCO LEATHER WORKS LTD. v. ABBEY (1998) 12 NWLR (PT. 579) 548 at 554; ONYEKWULUJE v. ANIMASAUN (1996) 3 NWLR (PT. 439) 637 at 644.
Learned 1st Respondents Preliminary objection is to the effect that an appeal predicated on a lone issue whose premise is an Appellant’s disagreement with the trial Court’s reasons for decision is an appeal predicated on a non-issue. As a result, the appeal is not being argued on valid issues for determination. Therefore, the appeal is incompetent and liable to be struck-out.
This piece of argument according to the Appellant is rather difficult to follow and I dare say that it is not sustainable in law. A Judgment delivered on appeal or at the trial Court without reason is a nullity. This is so because reasons in a Judgment provide the necessary materials from which the Appellant may raise grounds of appeal challenging the decision of that Court in exercising their constitutional right of appeal. Indeed, it is the Judgment of the Court and reasons for the Judgment are inseparable parties in law as it is
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the Judgment and the reasons therefore that constitute a valid Judgment of the Court. See IKENYA & ORS. V. PDP & ORS. (2012) LPELR – 7824 (SC).
In view of the above, I hold my humble view that the Appellant’s disagreement with the trial Court’s reasons for a decision in this appeal is not predicated on a non-issue as submitted by the 1st Respondent. Therefore, the lone issue is competent and the Preliminary objection is hereby over-ruled as being unmeritorious.
On the lone issue for determination, I think that the bone of contention here is whether or not Account Number 0003905577 is an active account still maintained by the 2nd Respondent. The Appellant had maintained in his affidavit paragraph 2(c)(iii) that:
“…the 2nd Respondent herein previously maintained Account No. 0003905577 with the 2nd Garnishee bank. However, the said account has since been closed pursuant to a letter from the office of the Commissioner of Police requesting that the aforesaid account be so closed”.
On the other hand, the 1st Respondent in his Counter-affidavit filed on her behalf stated that:
“I most vehemently deny paragraph 2(c)(iii) of the 2nd
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Garnishee affidavit and maintain that the Account No. 0003905577 is an active account maintained by the Nigeria Police Force with the 2nd Garnishee and the Commissioner of Police, Akwa Ibom State never at any time wrote to the 2nd Garnishee requesting closure of the said account”.
This categorical counter-affidavit of the 1st Respondent is not supported by any document nor did he state the source of the information in the counter-affidavit. To further buttress the fact that Account No. 0003905577 has been closed, the Appellant in a further affidavit to show cause Exhibited AB2 which is a letter of instruction dated 14th February, 2013 to close the said account. Even though the Appellant Exhibited AB1 which is the full and comprehensive statement of Account No. 0003899348, but that of Account No. 0003905577 was not exhibited.That made the 1st Respondent’s Counsel to rely on Section 167(d) of the Evidence Act 2011 and also accused the Appellant of the duty of non-disclosure.
I have earlier on stated that Exhibit AB2 is the instruction for the closure of Account No. 0003905577 which the Appellant at all material times maintained that the account
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has been closed at the instance of the 2nd Respondent. It is true as stated by the 1st Respondent that Exhibit AB1 was exhibited in Court as the comprehensive statement of account of Account No. 0003899348 which is already in debt of N284.21. On the other hand, Account No. 0003905577 was not exhibited which the 1st Respondent described as being cunningly and conveniently omitted to exhibit by the Appellant.
I do not see anything cunning or conveniently omitted as stated by the 1st Respondent against the Appellant. The Account No. 0003899348 is still an active account though with a debit of N284.21 kobo Account No. 0003905577 is no more an active account in the custody of the Appellant. Exhibit AB2 (letter of instruction to close the account) was exhibited and no statement of account obliged the 1st Respondent as it was no more a life account having been closed.
After the Appellant’s further affidavit to show cause and having exhibited Exhibit AB2 dated 14th February, 2013 and the authenticity of the instruction to close the Account No. 0003905577 at the instruction of the 2nd Respondent, the 1st Respondent if he has any other reaction to the
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factual situation ought to have filed further process but this he failed to do. The Appellant at that stage had done all that the law required him to do and the Lower Court ought not to make the Order absolute as it did on the Account No. 0003095577 which is dead, closed and defunct account.
With all the above, I do not hold the view that the Appellant failed in his duty of disclosure in respect of the dead and defunct account number as herein before stated.
The 1st Respondent had in his brief of argument submitted that the Appellant is still till date in custody of the funds belonging to the Judgment Debtor/2nd Respondent and is bound by law to pay-over same to the 1st Respondent. This argument with respect to Learned Counsel is not substantiated nor proved. There is no affidavit evidence showing the value of the credit standing in the account of 0003905577 as speculated by the 1st Respondent. Mere averment that the Appellant is still till date in custody of the fund belonging to the Judgment/debtor 2nd Respondent is not enough. The 1st Respondent ought to have gone further as stated earlier to state the balance in the aforesaid account standing to
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his credit. This, he failed to do and so this argument is hereby discountenanced. I, therefore, resolve this issue in favour of the Appellant.
The Respondents Counsel had alleged that the inability and/or refusal to show the statement of Account No. 0003905577 amounted to withholding evidence contrary to Section 167(d) of the Evidence Act 2011. From the facts of this case, the Appellant actually exhibited AB1 which is a live account so to speak. Also exhibited AB2 was also exhibited. Also account No. 0003905577 had been closed at the instance of the 2nd Respondent. All the cards have all been placed on the table at this stage. Therefore, I do not agree with the 1st Respondent Counsel submission that not exhibiting the statement of a defunct bank account amounts to withholding evidence on the part of the Appellant Section 167(d) of the Evidence Act therefore, does not apply to this case and I so hold.
On Exhibits A & B being additional evidence filed by the 1st Respondent, no leave was sought and obtained before filing same. Also to bring the above stated exhibits at this eleventh hour of the matter and relying on same without hearing from the
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Appellant regarding Exhibits A & B would amount to the violation of the principle of audi alteram partem. What is even more among others is that Exhibit B in particular belongs to a different party that was not a party during the trial at the Lower Court. To allow the said exhibit at this stage of the matter will change the character of this appeal and would amount to a party not being consistent in proving his case. Not having obtained the necessary leave of Court, Exhibits A & B and the arguments raised by the 1st Respondent on their behalf is hereby discountenanced and accordingly it is declared incompetent.
Another point worthy of note is the challenge of the 1st Respondent’s Counsel that the Appellant complained in his notice and ground of appeal in which the Appellant alleged that the Lower Court did not properly evaluate the evidence at the Lower Court. Learned Respondent contended that the Appellant did not go further not only to point at such errors or fact complained but must show that such errors or facts if corrected will lead to a reversal of the Judgment. See DOMA v. OGINI (1998) 3 NWLR (PT. 246) 256.
It is an elementary
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principle that the function of the evaluation of evidence is essentially that of the trial Judge. See ONUOHA V. THE STATE (1998) 5 NWLR (PT. 548) 118 where the trial Judge has unquestionably evaluated evidence and justifiably appraised the facts; it is not the business of the Appellant Court to interfere and to substitute its own views for the view of the trial Court. See WOLUCHEM VS. GUDI (1981) 5 SC 291, ENANG V. ADU (1981) 11 – 12 SC 25.
In the instant case, I believe that the trial Judge did not properly evaluated the affidavit evidence of both parties to the conflict on the issue as to whether Account No. 0003905577 is closed and that there is no credit there on before making the Order absolute. If the Lower Court had done otherwise, it could have arrived at a different conclusion and could not have made the Order absolute on Account No. 0003905577. This Court is therefore satisfied that the Lower Court did not properly evaluate the affidavit evidence and made wrong approach to the affidavit evidence and has not properly utilized its advantage of seeing and listening to the evidence. So this Court has a duty to intervene because the decision cannot
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be supported by the evidence on record. See Woluchem vs. Gudi (Supra), Mogaji vs. Odofin (1978) 4 SC 91.
In conclusion, I hereby resolve the lone issue in this appeal in favour of the Appellant and against the Respondent.
Consequently, the Order of Garnishee absolute is hereby set aside and the appeal is hereby allowed and the decision of the Lower Court is hereby set aside.
Other Citations: (2016)LCN/8780(CA)
