Guaranty Trust Bank Plc V. Innoson Nigeria Limited (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
In the suit of Innoson Nigeria Limited, the present Respondent as the plaintiff, at the Federal High Court, Ibadan, the Nigeria Customs Service and the Attorney-General of the Federation were the defendants. In the final judgment delivered on 20th December, 2010, the Federal High Court, in favour of Innoson Nigeria Ltd, ordered the defendants (hereinafter called the judgment debtors) to pay:
“i. Seven Hundred Million, Two Hundred and Twenty Two Thousand Naira (N700,220.000.00) only
ii. 22% interest on the said sum from the commencement of the action per annum until the date of judgment; and
iii. 22% interest per annum on the said sum from the date of judgment until final liquidation of the judgment sum.”
The Appellant herein was one of the 5 banks moneys belonging to the Nigeria Customs Service were traced to. The Nigeria Customs Service was one of the Appellant’s Customers. On 2nd March, 2011, the Order Nisi issued by the Federal High Court was served on the Appellant (as the 5th Garnishee). In the further affidavit to show cause, filed on 18th April, 2011, one
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Olawale Akinwusi, on behalf the 5th Garnishee/Appellant, had averred, inter alia-
4.(a) That the Garnishee Order Nisi dated 2nd of March, 2011 made by [the Federal High Court] was served on the 5th Garnishee on 3rd March, 2011;
(b) That the Garnishee complied and filed affidavit to show cause and the statement of Account of the Nigeria Customs Service” was exhibited with the affidavit to show cause;
(c) That the 5th Garnishee thereafter conducted further search into its records using the name “Nigeria Customs Service Board” and discovered the following –
(i) That the 1st Judgment Debtor maintains revenue accounts only with the 5th Garnishee and when merged, the total sum standing to the credit of the revenue accounts as at 23rd March, 2011 is N4,238.514.64k (Four Million, two Hundred and Thirty-Eight Thousand, Five Hundred and Fourteen Naira, Sixty-four kobo only),
(ii) That the said accounts are Customs Duty and Customs Revenue Accounts for the purpose of collecting customs duties and other levies from various importers on behalf of the Government of the Federal Republic of Nigeria;
(iii) That the said funds are
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remitted daily to the Federation Account with the Central Bank of Nigeria because the funds in the accounts belong to the Federal Government of Nigeria;
(iv) That the 2nd judgment Debtor does not maintain any account with the 5th Garnishee.”
In the first affidavit to show cause at the trial Court the Appellant (the 5th Garnishee) attached the statement of Account, marked Exhibit A, for the period: 5th January, 2010 to 12th May, 2010 to support their averment on oath that all the Nigeria Customs Service had in its account with was a credit balance of N468.50. Innoson Nigeria Ltd., Judgment Creditor, immediately countered and debunked the assertion. And it turned out that the Appellant had engaged itself in material non-disclosure. This prompted the 5th Garnishee/Appellant to admitting that the 1st Judgment Debtor, the Nigeria Customs Service, had a further sum of N4,238,514.00, which it tried to explain away as revenue item. The trial Federal High Court thereafter, at page 68 of the record, formed “the firm view that the 5th Garnishee has not disclosed (sic: displayed) utmost good faith as regards the proceedings”. It disregarded the Statement of
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Account, Exhibit A, with the credit balance of N468,50. The further affidavit of Innoson Nigeria Ltd, disclosed that the Nigeria Customs Service, the 1st Judgment Debtor, had in its account an amount up to N10,000.000,000.00 [Ten Billion Naira] as at 3rd March, 2011 when the 5th Garnishee/Appellant was served with the Order Nisi. The amount had been depleted to over five Billion [N5,000,000,000.00] Naira as at the time Appellant admitted only N4,238,514.00 as the amount in the account of the 1st Judgment Debtor, the Nigeria Customs Service.
The Court below found the Appellant to be ambivalent, and that it was blowing hot and cold, on the state of the account of the 1st Judgment Debtor. It had no difficulty affirming the garnishee order absolute made by the trial Court. It found, dismissing the contention of the Appellant that other moneys standing to the credit of the 1st Judgment Debtor were held in the revenue account payable to the Federation Account of the Federal Republic of Nigeria, that “the fact that it was for a particular purpose does not mean that it did not belong to the 1st Judgment Debtor.” The dismissal of their appeal against the garnishee
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order absolute has prompted this further appeal.
The original Notice of Appeal had 11 grounds of appeal. The Appellant, by the application filed on 5th February, 2016 is praying that –
“i. Leave be granted to it to affect some corrections in the original 11 grounds of appeal;
ii. Leave be granted to it to raise fresh issues in seven (7) additional grounds of appeal shown as Grounds 12, 13, 14,15, 16, 17 and 18 in Exhibit 7, the proposed amended Notice of Appeal.
iii. An Order deeming as filed and served the Amended Notice of Appeal; and
iv. Leave to adduce further or additional evidence – being 5 documents to show that Innoson Nigeria Ltd., the Respondent, had been paid the sums of N706,295,845.96 and N700,220,000.00 respectively on 22nd May, 2012 and 14th December, 2012 following the intervention of the Attorney-General of the Federation, who was the 2nd Judgment Debtor.”
I do not think there is any dispute about the Appellant’s prayer for leave to be granted to it to effect corrections to the existing 11 grounds of appeal. Accordingly, leave is hereby granted to the Appellant to amend the existing 11 grounds of appeal in terms of
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the particulars and specifics highlighted in paragraph II of the supporting affidavit and Exhibits 6 and 7. For avoidance of doubt, the leave hereby granted is only in respect of the existing or original 11 grounds of appeal.
This application was heard in the open Court on 21st February, 2017. Prof. Madugha, of counsel to the Respondent, while adopting the processes filed on behalf of the Respondent indicated that, in the written address they had filed on 4th December, 2015, they raised and argued therein a preliminary objection to the effect that “the Appellant had waived their right to adduce additional evidence and or are estopped from adducing additional evidence and therefore the Court lack jurisdiction to entertain and or grant Appellant’s prayer 4. The same objection is repeated in the written address filed together with the counter affidavit of the Respondent filed on 6th April, 2016. In both instances it is not clear, ex facie, whether any legal practitioner signed or settled the written addresses. The processes had on them at the signature column a signature, each, that cannot be ascribed to any of the four persons, including the names of
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Prof. J.N.M. Madugha, FCILS, FCM; Dr. N. J. Maduike-Ekwe, Ph.D; E.C. Ofime, Esq., LL.B and C. Dimazoro-Okeke (Mrs.), LL.M, who apparently are Legal Practitioners. The same scenario was repeated on the written address filed on 21st June, 2016 along with the Further Counter Affidavit No. 2 filed on the same date. Relying on SLB CONSTRUCTION v. NNPC (2011) 9 NWLR (Pt.1252) 317 at 336 -337. Mr. Olorundare, SAN of counsel to the Appellant had strongly urged that the said processes are incompetent and should be struck out.
It is trite that it is the seal or signature, of the author on a document that authenticates the document. A legal document or process of Court must be settled or signed by either the legal practitioner of the choice of the litigant or the litigant himself. The disputed processes were purportedly settled or signed by a legal practitioner, whose identity is unknown. Where ex facie a Court process it is uncertain if the process was signed by the litigant or the legal practitioner representing him, the process is incompetent. Court processes must either be signed by the litigant himself or by the legal practitioner retained by him. A Court
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process that purports to be settled by a legal practitioner must, as a requirement of statute, have not only the signature of the legal practitioner but also his name clearly shown and indicating that the signature is his. The decision of this Court in SLB CONSTRUCTION LTD. v. NNPC (supra) and many others on Court processes prepared and filed by a legal practitioner clearly demonstrate that for the signature thereon appended to be valid, it must be traceable to a legal practitioner. The process must have the signature or mark of the legal practitioner either against his name, or over and above his name.
The written addresses filed on 6th April, 2016 and 21st June, 2016 are clearly incompetent. The signature on each of them cannot be verified or traced to any registered legal practitioner. They are accordingly struck out. Notwithstanding the striking out of these processes the application can still be decided on its merits on the basis of the available affidavits and the counter affidavits.
Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment
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of the debts due or accruing to the judgment debtor which form part of his property available in execution. The third party holds the debt or property of the Judgment Debtor. By this process, Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of phrases Legally Defined 3rd Edition Vol.2, pages 313 314 cited by Akintan, JSC, in his concurring judgment in UNION BANK OF NIGERIA PLC. v. BONEY MARCUS INDUSTRIES LTD. (2005) 13 NWLR (Pt.943) 654 at page 666.
Lord Denning, MR, in CHOICE INVESTMENT LTD. v. JEROMINIMON (1981) QB 149 at 154 – 155, gives a simple illustration of garnishee proceeding thus:
“A creditor is owed 100 by a debtor. The debtor does not pay. The creditor then gets judgment against him for the 100. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has 150 at his bank. The creditor can get a “garnishee” order against the bank by which
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the bank is required to pay into the Court or direct to the [judgment creditor] out of the Customer’s 150 the 100 which he owes to the creditor.”
The master of the Rolls went on, in the case, to state further:
“There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay 100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason way the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See PRITCHARD V. WESTMINISTER (1969) 1 ALL ER 999 and RAINBOW v. MOORGATE PROPERTIES LTD. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it.”
I did this detour for a purpose. That is, to
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show that garnishee proceedings is not a process employed by the garnishee to fight a proxy war against the judgment creditor on behalf of the judgment debtor. Accordingly, it does not avail the garnishee to contest the merits of the judgment culminating in the judgment debt. It does not therefore, lie in the power or right of the garnishee to contumaciously attack the main judgment which the judgment creditor and the judgment debtor have accepted or are deemed to have accepted, and/or which they have submitted themselves to.
It is a settled principle of law that a decision of a Court of law not appealed against is deemed to be acceptable to the parties thereto and it remains binding on them as well as their privies, including garnishees: See AKERE v. THE GOVERNOR, OYO STATE & ORS. (2012) 50 NSCQR 345 at 394, 414 – 415; DARIYE v. FRN (2015) 67 NSCQR 1457 at 1496 – 1497.
The Appellant, as the 5th Garnishee, seeks leave of this Court to file 9 additional grounds of appeal whereby he raises fresh issues in the 7 additional grounds of appeal numbered as Grounds 12, 13, 14, 15, 16, 17 and 18 in Exhibit 7, the proposed Amended Notice of Appeal. Upon
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scrutiny of these grounds, it is my firm view that these grounds of appeal are attacking the main judgment which the Appellant, as the 5th Garnishee, was not a party to, and which neither the judgment debtors nor the judgment creditor are complaining of. The decision the Appellant is complaining about is the decision contained in the judgment of the Court of Appeal, Ibadan Division, delivered on 6th February, 2014 in the appeal No. CA/I/255/2011 [Coram: M.B. Dongban-Mensem, C.N. Uwa, and O. Daniel-Kalio, JJCA] against the garnishee order absolute made by the Federal High Court on 29th July, 2011. The law has been restated, times without number, by this Court that grounds of appeal against a decision must relate to the decision and should constitute a challenge to the ratio decidendi of the decision: See instance, SARAKI v. KOTOYE (1992) 11 – 12 SCNJ 26; FRED EGBE v. ADEFARASIN (1990) 1 NWLR (pt.128) 546 at 590.
Upon my painstaking perusal of the Appellant’s written addresses and these additional grounds of appeal, particularly those on which the Appellant seeks leave to raise fresh issues, vis-a-vis the record of appeal: I am of the considered opinion
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that it will be frivolous, and not reasonably purposeful, to grant the leave sought. Accordingly, prayers 2 and 3 on the motion papers filed on 5th February, 2016, are hereby refused and/or dismissed.
In paragraph 5 of the supporting Affidavit of the Appellant, verifying or purporting to establish good reason why an order granting leave to the Appellant/Applicant to adduce further or additional evidence should be granted, it is averred –
“5. The evidence sought to be tendered as fresh evidence are –
(a) Letter dated 25th May, 2014 with Reference No: NCS/LEG/HQ/AB/2014 addressed by the Nigeria Customs Service to the Applicant:
(b) The Federal Ministry of Finance – Nigeria Customs Service Payment Schedule dated 28th November, 2011,
(c) Letter dated 13th April, 2011 with Reference No: HAGF/SH/2011/VOL.1/26 addressed by the Honourable Attorney-General of the Federation to the President of the Federal Republic of Nigeria;
(d) Further Counter Affidavit deposed to by Ajose Olalekan David on behalf of the Respondent herein and filed at the Registry of the Federal High Court, Lagos on 22nd day of May, 2012 In the Suit No:
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FHC/L/CS/603/2006;
(e) Further Counter Affidavit deposed to by Ajose Olalekan David on behalf of the Respondent herein and filed at the Registry of the Federal High Court on 14th day of December, 2012 in Suit No:FHC/L/CS/603/2006 to the effect that while the appeal was pending at the Court below, the Respondent was paid by the judgment Debtor (the Nigeria Customs Service) through the intervention of the Attorney-General of the Federation, the Judgment debt (as negotiated) (totalling the sum of N1,406,515,845.98) forming the subject of the garnishee order absolute culminating in the appeal before the Court below.”
The fresh or additional evidence sought to be adduced are intended, allegedly, to prove the complaints in the additional grounds 12,13,14,15,17 and 18, which I have just, in this Ruling, refused leave sought by the Appellant to raise. That therefore knocks the bottom off the leave being sought for the Appellant to adduce these further evidence. In that circumstance there would be no further basis for the fresh or additional evidence since the leave sought to raise and argue the fresh issues through the 7 proposed additional grounds of appeal
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have been refused.
The Appellant therein has not made things easy for itself in this application in which it is simultaneously praying for leave to raise and argue fresh issues or points which this Court does not have the benefit of the views of the Court below, and leave to adduce fresh evidence. From a long line of cases, when this Court, being the Court of last resort had been liberal and magnanimous in entertaining new issues not taken at the Court below, it did so on condition that no further or fresh evidence would be needed for the resolution of the new issues or points: See ABAYE v. OFILI (1986) 1 NWLR (Pt.15) 134; (1986) 1 SC. 231; A.G. OYO STATE v. FAIRLAKES HOTELS LTD. [1988] 5 NWLR (pt.92) 1; UOR v. LOKO (1988) 2 NWLR (Pt.77) 490; ONIAH v. ONYIA (1980) 1 NWLR (Pt.99) 514; OSHO v. APE (1998) 8 NWLR (Pt.562) 492 at 502 – 503. The general rule, on fresh point or issue in this Court, is that it will not be entertained if this Court had not the benefit of the views of the Justices of the Court below: see FADIORA v. GBADEBO (1998) 3 SC 219; ENANG v. ADU (1981) 11 – 12 SC 25; ADEGOKE MOTORS v. ADESANYA (1989) 3 NWLR (Pt.109) 250, etc.
Three
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prominent considerations tending to work against adducing fresh evidence at the appellate Court, when this Court exercises its power under Order 2, Rule 12 of the Rules of this Court in that regard, are –
“i. Where issues are joined on pleadings at the trial Court no party shall be taken by surprise. Thus, the Appeal Court cannot consider the reception of new evidence without amendment of the pleadings. See ONIBUDO v. AKIBU (1982) 7 SC. 60; ADELEKE v. ASHERIFA (1990) 3 NWLR (Pt.136) 94 at 111; (1990) 21 NSCC 145 at 154.
ii. It is in the interest of public policy, particularly for the purpose of efficient and effective administration of justice, to obviate prolongation of litigation that the practice of adducing evidence, which ought to have been adduced at the trial Court, should not be postponed to after judgment: See ADELEKE v. ASHERIFA (supra).
iii. Appellate Courts generally exercise their jurisdiction to correct errors of law or fact made by the Courts below, after the latter’s consideration of the totality of evidential materials before them. Accordingly, the correctness of the decision of a trial Court or Judge should not be assessed
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or judged on the new evidence that the trial Court or judge never had an opportunity to consider: See ADELEKE v. ASHERIFA (supra). In other words the correctness or otherwise of the judgment of the trial Judge or Court should not be assessed on evidential materials he or it never had opportunity to consider.”
The mischievous purpose of the leave sought to raise fresh issues through the additional grounds of appeal is the use of this appeal against the garnishee order absolute to secure a downward review of the judgment debt against the judgment debtor. It is a sheer proxy war the Appellant has embarked upon on behalf of the apparently unwilling Judgment Debtors. While we are hearing the voice of Jacob, we are certainly touching the hand of Esau. This has led to the material contradictions in the stance of the Appellant in this application, who has consistently engaged itself in double-speak, when it suits it, or an outright material non-disclosure or suppression of material facts.
In paragraph 5 of the supporting Affidavit, it would appear that the Appellant admits that, from the alleged negotiations between the judgment Debtors and the Judgment
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Creditor, the total sum of N1,406,515,845.98 is the agreed judgment sum standing to the credit of the Judgment creditor, the Respondent herein. This assertion is seriously denied and contested by the Respondent. Even though there is no application sought to amend paragraph 4 of the Notice of Appeal: Reliefs sought from the Supreme Court, the Appellant has inserted in Exhibit 7, the proposed Amended Notice of Appeal the following reliefs, that is –
“(a) AN ORDER allowing the appeal and discharging the appellant from the Garnishee proceeding.
(b) In alternative: AN ORDER setting aside the judgment of the Court of Appeal for being a nullity and striking out the entire garnishee proceedings including the order absolute made therein as against the Appellant;
(c) In further alternative: AN ORDER varying the garnishee order absolute to cover the sum of N700.220.000.00 only and consequently discharging the Appellant, the said judgment having been liquidated by the judgment debtor, as admitted and confirmed.
(d) In further alternative, AN ORDER directing that the Respondent to refund to the judgment debtor sums paid in excess on N700,220,000.00
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based on interest awarded without jurisdiction.”
The question which the Appellant offers no answer or explanation is: On what locus standi does the Appellant/Garnishee stand to attack the main judgment I see none, except some frivolous frolic.
Let me further state, at the risk of repetition, that neither the Nigeria Customs Service nor the Attorney-General of the Federation, who are the Judgment Debtors, have not appealed the Judgment or Order of the Federal High Court directing them to pay to the Respondent herein –
“a) N700,220,000.00 as damages;
b) 22% interest per annum on the said sum on the said sum of N700,220.000.00 from the date of the commencement of the suit to the date of the judgment;
c) 22% interest per annum on the judgment sum from the date of Judgment until final liquidation of the judgment sum.
Prayer 4 on the motion paper, like prayer 2 thereon, is frivolous and vexatious. I do not hesitate to refuse it. It is accordingly dismissed.
It is not for a garnishee to fight the cause of a judgment debtor who either accepts the judgment against him and does nothing about it, or who may be indolent to fight
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his cause. No power in law inheres in the garnishee to make himself a busybody and proceed like Don Quixote, the Knight Errant, to fight the cause of the judgment debtor who is his customer. A judgment debtor whose money or property is seized or attached through garnishee proceedings in excess of the judgment sum has several options in law to deploy to forestall such unwarranted seizure or attachment. It is not for the garnishee to embark on any of such options, which he lacks the locus standi to embark on. The cause of action accruable to the garnishee in a garnishee proceeding is quite a limited one. It does not include his usurping the cause of action of the Judgment Debtor. It is for this reason that I consider or view this aspect of the instant application an abuse of Court process.
Prayers 2, 3 and 4 in this application are hereby refused to the Appellant. As regards prayer 1 on the motion papers, the leave granted to the Appellant to amend its Notice of Appeal is only in terms of the particulars and specifics highlighted in Exhibits 6 and 7 and only in respect of grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11 in the original Notice of Appeal.<br< p=””
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The Respondent is entitled to be awarded costs in this application, considering the several affidavits filed in this application. Costs assessed at N500,000.00 are hereby awarded in favour of the Respondent and against the Appellant, as the Applicant.
SC.694/2014(R)
