AJAOKUTA STEEL COMPANY BOARD OF TRUSTEES OF STAFF PENSION SCHEME V. S.A. ROLE & 148 OTHERS

Share this:

AJAOKUTA STEEL COMPANY BOARD OF TRUSTEES OF STAFF PENSION SCHEME V. S.A. ROLE & 148 OTHERS
CITATION: (2012) 3 iLAW/CA/IL/99/2009
OTHER CITATIONS:
  
Nigerian Coat of Arms
In The Court of Appeal
(Ilorin Judicial Division)
On Thursday, the 29th day of March, 2012
Suit No: CA/IL/99/2009
Before Their Lordships
IGNATIUS IGWE AGUBE
……. Justice, Court of Appeal
IGWE GEORGE MBABA
……. Justice, Court of Appeal
OBANDE OGBUINYA
……. Justice, Court of Appeal
 Between
AJAOKUTA STEEL COMPANY BOARD OF TRUSTEES OF STAFF PENSION SCHEME Appellants
 And
1. S.A. ROLE & 148 OTHERS
2. AJAOKUTA STEEL COMPANY LIMITED
3. HON. MINISTER OF POWER AND STEEL
4. THE ATTORNEY GENERAL OF THE FEDERATION
Respondents
RATIO DECIDENDI
1
EVIDENCE – DOCUMENTARY EVIDENCE: Cardinal rule of interpretation of documentary evidence
“the signal and elementary rule of construction of document, like Ndubuisi Ogbodo’s affidavit, is that it is to be read holistically and harmoniously by looking at what comes before and. after a passage sought to be interpreted in order to garner or discern the purport of the passage. In the case of Nigerian Army V. Aminu – Kano (2010) 5 NWLR {Pt. 1188} 429 at 457, Muhammed, JSC, stated: “…Although, Exhibit P45 is not an Act of parliament or a piece of any legislation, it is a document written with a particular purpose. In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it. This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.? See, also, Artra Ind. Nig. Ltd V. N.B.C.L. (1998) 4 NWLR (Pt. 546) 357/ (1998) 3 SCNJ 97; Unilife De Co. Ltd V. Adeshigbin (2001) 4 NWLR (pt. 704) 609/ (2011) 2 SCNJ 116.”PER OGBUINYA, J.C.A. (Pp.48-49, Paras. E-C) – read in context
2
COURT – DUTY OF COURT: Duty of court in adjudicating proceedings
“A court of law is enjoined to dish out justice to parties to any proceedings in consonance with the law. A court of law is not allowed to jettison or turn a blind eye to sacred prescriptions of legislation in the guise of doing justice, be it substantial justice. That would be akin to abdication of its sacred judicial duty. This is why Tobi, JSC, in the case of Dada Dosunmu (2006) 18 NWLR (pt. 1010) 134 at 166, succinctly, observed. ?The role of the court is to apply the principles of substantial justice according of law. The principles cannot be applied outside the law or in contradiction of the law. A court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice, that vey expensive commodity in the judicial process, should be evenly spread between the parties. Where a rule of court has clearly and unambiguously provided for a particular act or situation, the courts have duty to enforce the act or situation and here; the issue of doing substantial justice does not or should not arise. The party who failed to comply with the rule has himself to blame. He cannot be heard, to canvass the omnibus ground of doing substantial justice?PER OGBUINYA, J.C.A. (Pp.53-54, Paras. F-E) – read in context
3
JUDGMENT AND ORDER – GARNISHEE PROCEEDING: Application of garnishee proceeding
“Garnishee proceeding a derivative of “Garnish”, a French word that connotes “to warn”, is a mode of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party, the garnishee, is attached or seized by a judgment creditor, the garnisher or garnishor, in satisfaction of a judgment sum or debt obtained by the latter against the former. It is a special specie or class of enforcement of money judgment where the ordinary methods of execution are inapplicable. By the process, the court is imbued or endowed with the power to order a third party to pay a judgment debt directly to a judgment creditor a debt due or accruing due from a judgment debtor or as much of it as may be sufficient to satisfy the judgment sum and the costs of the garnishee proceedings. In practice, a judgment creditor makes an ex parte application to the court which issues order nisi, a Norman French word meaning “unless”, against a garnishee which it makes absolute if the garnishee is unable to show good cause, see, Citizens Int?l Bank V. SCOA {Nig} Ltd (supra); Denton-West V. Nuoma (supra); U.B.N Plc V. Boney Marchis Ind. Ltd. {2005} 13 NWLR (pt, 943) 654; Purification Tech (Nig) Ltd V. A. G., Lagos State (2004) 9 NWLR (Pt. 879) 665; F. M. B. N. Ltd V. Desire Gallery Ltd (2004) 13 NWLR (Pt. 891) 522; N.A.O.C. Ltd V. Ogini (2011) 2 NWLR (Pt. 1230) 13; section 83 of the Sheriffs and Civil Process Act and Order VIII judgment (Enforcement) Rules, Cap 56, Law of the Federation of Nigeria, 2004; Order 37 of the Federal High Court (Civil Procedure) Rules, 2009.”PER OGBUINYA, J.C.A. (Pp.41-42, Paras. E-E) – read in context
4
APPEAL – ISSUE FOR DETERMINATION: Whether more than one issue for determination can be gotten from one ground of appeal
“The state of the law on this issue is not a moot point. Whereas one issue for determination can germinate from a mono or a singular ground of appeal, one ground of appeal cannot given birth to two or more issues for determination. The latter situation smacks or reeks of proliferation or multiplication of issues which the law, seriously frowns upon, see Duwin Pharmaceutical & Cosmetics Ltd v. Beneks Pharmaceutical & Cosmetics Ltd. (supra); Magit V. University of Agriculture (supra); Eke V. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Okwuagbala V. Ikwueme (2010) 19 NWLR (Pt. 1226) 54; Okonobor D.E. & S.T. Co. Ltd (2010) 17 NWLR (Pt. 1221) 181..It stems from the foregoing that the appellant ran foul of this cardinal principle of law when it generated two issues from its ground one of the appeal. Nevertheless, I am loath to invoking this hallowed rule of law against the appellant. This is because it, the appellant, at the earliest opportunity of reacting to the first respondent’s preliminary objection, conceded to doing violence to the law and applied for a striking out of issue two leaving issue one. On account of that concession and early supplication, I am minded, in the overriding interest of doing substantial justice, to acceding to the appellant’s request or application. In this regard, I draw on the case of Akpan V. Bob. (supra) (2010) 17 NWLR (Pt; 1223) 421 at 517 wherein Onnoghen, JSC, lucidly, observed: ?There is no law against arguing two or more issues together in a brief of argument. The practice is encouraged for its convenience to both the parties and the court as it is designed to save time and avoid repetition of argument. In the process of arguing many issues together there can be the error of arguing valid issues together with invalid issues, such as arguing issues not arising from the grounds of appeal together with those that arise from the grounds of appeal or arguing an issue on a ground of appeal not arising from the judgment appealed against, etc, etc. Where such a situation arises, the law is settled that the invalid issue together with the argument proffered in support thereof must be struck out, ns happened in the instant case. However, where the argument in support of the surviving valid issue(s) is clearly identifiable from the argument in support of the struck out issue and argument in support of same, as in the instant case, the court is enjoined to do substantial justice between the parties having regards to the facts and. circumstances of the case by relying on the argument proffered in support of the valid surviving issue in resolving the issue in controversy between the parties particularly where to do so would not result in a miscarriage of justice, as in the instant case. To do otherwise amounts to doing justice according to technicalities which is frowned upon by the court?? See, also, Ogbe V. Asade (Supra) / (2009) 18 NWLR (Pt. 1172) 106.”PER OGBUINYA, J.C.A. (Pp.26-28, Paras. B-B) – read in context
5
APPEAL – JURISDICTION OF THE APPELLATE COURT: Whether the appellate court has jusrisdiction yo read into the record of appeal
“The law does not permit me to factor into the record what is absent or to subtract from it what is there. In the case of Orugbo V. Uua (2002) 16 NWLR (Pt. 79) 175 at 205-207, Tobi JSC, stated: “?An appellate court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read, out of the record what is there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate court must read the record in its exact content and interpret it. Of course it has the Jurisdiction to decide whether on the face of the record and, on the cold facts the decision was proper” See, also, Ogidi State (2005) 5 NWLR (Pt. 918) 256; O. O. M. F. Ltd. N.A.C.B. Ltd. (2008) 12 NWLR (pt, 1098) 412; Ekpemupolo Edremoda (2009) 8 NWLR (Pt. 1142) 166; International Bank Plc. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo Sunmonu (2010) 11 NWIR (Pt. 1205) 375; Garuba Omokhodion (2011) 15 NWLR (Pt, 1269) 145.”PER OGBUINYA, J.C.A. (Pp.58-59, Paras. C-A) – read in context
6
ACTION – NON-JOINDER/MISJOINDER OF PARTIES: Whether non-joinder or misjoinder of party or parties would defeat any proceedings by divesting a court of its jurisdiction to adjudicate
“The current position of the law is that non-joinder or misjoinder of party or parties will not defeat any proceedings by divesting a court of its jurisdiction to adjudicate over them because such party or parties can be included or exclude by the adjudicating court in keeping with it relevant rules. In the case of Anyanwoko V. Okoye (2010) 5 NWLR (Pt. 1188) 497 at 515 – 516, Tabai JSC stated: “…The non-joinder or misjoinder of a necessary party is only a procedural irregularity which can be corrected in the course of the proceedings by recourse to the relevant Rules of Court and does not in any wag affect the jurisdiction of the court or competence of the suit.” See, also, Okoye V. Nigerian Construction & Furniture Co. Ltd (1991) 7 SCNJ (Pt. II) 365; Bello V. INEC (2010) 8 NWLR (Pt. 1196) 342; Sapo V. Summonu (2010) 11 NWLR (Pt. 1205) 374; Iyere V. B.F.F.M Ltd (2008) 18 NWLR (Pt. 1119) 30.”PER OGBUINYA, J.C.A. (P.25, Paras. B-G) – read in context
7
APPEAL – PRELIMINARY OBJECTION: Whether preliminary objection must be settled before a substantive suit
“The law compels me to settle the preliminary objection first, particularly, as it seeks to terminate the appeal in limine on account of lack of jurisdiction. The essence of this is to determine the fate or fortune of the substantive see Adelekan V. Etu-Line NV (2006) 12 NWLR (Pt. 993) 33; Uwazurike V. A.G., Fed. (2007) 8 NWLR (Pt. 1035) 1; Akpan V. Bob (2010) 17 NWLR (Pt. 1224) 421; Odedo V. INEC (2008) 17 NWLR (pt. 1117) 554; B.A.S.F. (Nig) Ltd V. Faith Enterprises Ltd (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd. Amadi (2011) 14 NWLR (Pt. 1266) 157; Efet V. INEC (2011) 7 NWLR (pt. 1247) 423; F.B.N. Plc. V. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 242″PER OGBUINYA, J.C.A. (P.16, Paras. C-F) – read in context
8
INTERPRETATION OF STATUTE – SECTION 88 OF THE SHERIFF AND CIVIL PROCESS ACT: Interpretation of provision of section 88 of the Sheriff and Civil Process Act
?88. Lien or claim of third person in debt. Whenever in any proceedings to obtain an attachment of a debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person or that any third person has a lien or charge upon it, the court may order such third person to appear particulars of his claim upon such debt.” See, also, the provision of Order 37 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2009 which is in the mould of the provision of section 88 of the Act. From the reproduced provision of section 88 of the Sheriffs and Civil Process Act, it is axiomatic that it is a garnishee, a person, body or institution that is indebted to or is a bailee for another, whose property has been subjected to garnishment, that is laden with the bounden duty to suggest to or intimate a court that a judgment debt sought to be distressed belongs to a third party, other than the judgment debtor, or that he has a lien or charge on it. In this perspective, I have employed the ubiquitous literal canon of interpretation of statutes. The ancient rule is to the effect that when the words and provisions of any legislation are clear, precise and unambiguous, a court should give them their ordinary grammatical meanings without any embellishment or interpolations see A. G., Fed V. Abubakar (2007) 10 NWLR (pt. 1041) 1; Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 285; Agbiti, V. Nigerian Army (2010) 14 NWLR (PT. 1236) 175; Oyegun V. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; Taiwo V. Adegboro (2011) 11 NWLR (Pt. 1259) 552.”PER OGBUINYA, J.C.A. (Pp.42-43, Paras. F-G) – read in context
9
ADMINISTRATIVE LAW – STATUTORY DUTY: Whether a statutory obligation can be delegated to another person, body or authority
“The law is that where an enactment, the Sheriffs and Civil Process Act via section 88 thereof, bestows on or vests in a particular person, body or authority a specific duty to perform, it is only that person, body or authority, and none other, that can do that assignment. Anything short of this cannot be endorsed by the law. In the case of Emuze C., University of Benin (2003) 10 NWLR (pt. 825) 378 at 401, Iguh, JSC, opined ??where a statute confers specific or special power on any person or authority for the performance of certain acts or duties, it is only that person or duties, it is only that person or authority and no other person that is contemplated in the performance of such acts or duties under the relevant law. He must also act in strict accordance with the power vested in him by the relevant statute and may not exceed such power.? See, also, Garba University of Maiduguri (1986) 1NWLR (Pt. 18) 550, Balonwu Go, Anambra State (2008) 16 NWLR (pt. 1113) 236; Savannah Bank of Nigeria Ltd. Ajilo (1989) 1 NWLR (pt. 97) 305 UBN Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (pt. 1052) 567 or (2007 4 KLR (pt. 235) 2003. The corollary of the above state of the law is that a mandatory method decreed by a statute for doing anything must be followed to the letter or the act remains unaccomplished waiting to be nullified by the court, see Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 427; Nwankwo Yar’adua (2010) 12 NWLR (pt. 1209) 518; N. S. I. T. F. M. B. Klifco (Nig,) Ltd. (2010) 13 NWLR (pt. 1211) 307; Papersack (Nig.) Ltd. Odutola (2011) 10 NWLR (pt. 1255) 244; Amaeachi INEC (Supra) Oloruntoba Oju Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83.”PER OGBUINYA, J.C.A. (Pp.51-52, Paras. C-E) – read in context
OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal grew out of the judgment of the Federal High Court, Ilorin Division, presided over by Hon. Justice Bilkisu Bello Aliyu, in Suit No. FHC/IL/M.13/2006 delivered on 18/06/2009 wherein the court dismissed the appellant’s application.

“Flowing from the process filed, the background facts of this appeal are not complex. On 31/10/2006, the first set of respondents, (abridged to the first respondent) as plaintiffs, in the lower court, Coram Chukwura Nnamani of the blessed memory, obtained judgment against the second, third and fourth respondents, as first, second and third defendants respectively, to the tune of N20,199,731:75 in suit No FHC/IL/CS/6/2006. When the second to the fourth respondents failed to satisfy the said judgment debt, the first respondent applied to the lower court on 22/07/2008, via a motion ex-parte, to garnish the money of the second respondent, the first respondent/judgment debtor therein. The lower court granted the ex parte application, on 15/10/2008, and made order nisi attaching the second respondent’s money in Union Bank Plc. Account No. 5141060000065, Unity Bank Plc. Account No. 259/669907/1/10 and United Bank for Africa. Consequently, the second respondent’s accounts in those three banks were garnished and they, the banks, were ordered to show cause why that order nisi should not be made absolute and they did.

When the appellant got wind of the order nisi, from the managers of Union Bank Plc and Unity Bank Plc, it brought an application, via a motion notice, filed on 26/11/2008 before the lower court and prayed it to vacate the Order of Garnishee Nisi made against the accounts in the two banks aforementioned. The application was predicated on the grounds that: the two accounts in the two banks belonged to the appellant and not the second respondent, Ajaokuta Steel Company Limited, the appellant was not a party to the original suit, suit No. FHC/IL/CS/6/2006 and it had no dispute with nor indebted to the first respondent/judgment creditor – Ajaokuta Steel Company Limited. The application was opposed by the first respondent.

After hearing all the parties to the application, the lower court dismissed it and went ahead to make the order nisi absolute against the second respondent’s accounts in Union Bank Plc, Unity Bank Plc and United Bank for Africa Plc (all in Ajaokuta). The appellant was aggrieved by that decision of the lower court. In consequence of that dissatisfaction, it filed a notice of appeal, on 03/07/2009, hosting two grounds and found on pages 310-312 of the record of appeal. In the said appeal, the appellant prayed the court for: “An order allowing the appeal and, setting aside the decision of the lower court delivered on 16th June, 2009; and, setting aside the order absolute granted by the lower court.”

As required by law, parties filed and exchanged their briefs of argument. When the appeal came up for hearing on 26/01/2012, parties via their respective learned counsel, adopted their briefs of argument. Consequently, learned counsel for the appellant, Mrs. Iwalola Bello, adopted the appellant’s brief of argument, filed on 30/2/2009, and the appellant’s reply brief of argument, filed on 28/10/2011, but deemed filed on 14/11/2011, as representing her arguments in support of the appeal. She prayed the court to allow the appeal. Similarly, learned counsel for the first respondent, I. O. Salahudeen, Esq., adopted the first respondent’s brief of argument, filed on 16/05/2011, but deemed filed on 30/06/2011, containing arguments on his preliminary objection, as forming his submissions against the appeal. He urged the court uphold the preliminary objection and strike out the appeal or dismiss it where the objection failed.

Before the adoption of the briefs of the respective parties, learned counsel for the first respondent intimated the court that the first respondent filed a preliminary objection against the appeal. He also informed the court that the arguments on it were incorporated in the first respondent’s brief of argument. The law compels me to settle the preliminary objection first, particularly, as it seeks to terminate the appeal in limine on account of lack of jurisdiction. The essence of this is to determine the fate or fortune of the substantive see Adelekan V. Etu-Line NV (2006) 12 NWLR (Pt. 993) 33; Uwazurike V. A.G., Fed. (2007) 8 NWLR (Pt. 1035) 1; Akpan V. Bob (2010) 17 NWLR (Pt. 1224) 421; Odedo V. INEC (2008) 17 NWLR (pt. 1117) 554; B.A.S.F. (Nig) Ltd V. Faith Enterprises Ltd (2010) 4 NWLR (Pt. 1183) 104; SPDCN Ltd. Amadi (2011) 14 NWLR (Pt. 1266) 157; Efet V. INEC (2011) 7 NWLR (pt. 1247) 423; F.B.N. Plc. V. T.S.A. Ind. Ltd. (2010) 15 NWLR (pt. 1216) 242. In due obeisance to the law, I will deal with the preliminary objection first.

The first respondent’s preliminary objection was that the appellant’s brief of argument was incompetent having regard that it constituted an abuse of court process as follows:

“1. An order that the proper parties are not represented in this appeal.

2. An order of this Honourable Court that the two issues for determination as framed from one ground of appeal is incurably bad in law and the entire issues one and two be disgregarded.

3. An order striking out the parts in the argument in that the issues as formulated did not flow from the grounds one of the appeal.

GROUND OF OBJECTION:

1. That the proper parties to the garnishee proceedings upon which this appeal is based are not made parties in this appeal.

2. That the garnishees for which the application was brought during the pendency of the garnish proceedings were not parties.

3. That the Appellant was never a party to the proceeding.

4. That the parties and the appeal as it relates to the parties are improperly constituted.

5. That the number of issues for determination outnumbered the grounds for appeal.

6. That the issues as formulated did not flow from the notice and grounds of appeal.”

In the first respondent’s brief of argument, on pages 2-5 thereof, the preliminary objection was argued on two issues for determination, based on the appellant’s two grounds, to wit:

“1. Whether issues formulated from a single ground of appeal is proper in law.

2. Whether or not the issues formulated and argued in the brief flows from the grounds and notice of appeal.”

In a swift reaction to the preliminary objection, the appellant filed the reply brief of argument wherein it answered to the first respondent’s argument’s on it.

On issue one, learned counsel for the first respondent made an observation, which he urged the court to view with all seriousness, that the parties in court were not the parties in the garnishee proceeding from which the appeal originated. He noted that the third and fourth respondents were not parties to the proceedings. He, then, submitted that the entire proceedings, the notices of appeal and the appellant’s brief of argument were fundamentally flawed and failed to properly address the parties that were affected by the proceedings resulting to the appeal. He urged the court to dismiss the appeal on that ground.

For the appellant, on issue one, its learned counsel submitted that Order 4 Rule 2(1) of the Court of Appeal Rules, 2011 made it a mandatory provision for all parties affected by the appeal to be joined in the appeal. He cited the case of Ogbuli v. Ogbuli (2008) 11 NWLR (pt. 1068) 258 at 271 – 272 in support of his submission. He further submitted that it was not the business of the first respond.ent to challenge the joinder of the third and fourth respondents when the parties themselves had not done so. He insisted that it was not correct in law to say that a misjoinder, when proved to exist in an action, could prompt an order of dismissal of such action appeal and that what the court could do, in such situation, would be to strike out the party wrongly joinded upon the party’s application.

He took the view that the proceedings were initiated by the motion Ex-parte, dated 08/07/2008, on page 1 of the record, with the names of the parties therein listed. He further submitted that from the records, it was clear that the third and fourth respondents were parties to the proceedings and became parties affected, by the appeal because the issue of ownership of the two accounts between the appellant and the second and third respondents was in issue. He stated that even where an appeal had been found incompetent, on any ground whatsoever, the appeal court could only strike out and not dismiss such appeal, citing the case of Williams V. Ibejiako (2008) 15 NWLR (Pt. 1110) 367 at 385. He pointed out that while ground of the objection alleged that proper parties were not represented, it was argued that the third and fourth respondents were not proper parties to the appeal. He persisted that there was no nexus between the ground and the arguments.

On issue two, learned counsel for the appellant drew the court’s attention to the two issues the appellant formulated form ground one of the appeal. He referred the court to Page 4 lines 7-10 of the appellant’s brief of argument wherein it was stated: “The first and second issues or determination arise from ground one of the Notice of Appeal …” and that the two issues would be argued jointly. He, then, contended that the appellant purposely and knowingly framed two issues from one ground of appeal which was incurably bad in law. He placed reliance on the case of Duwin Pharmaceutical & Chemical Co. Ltd v. Beneks Pharmaceutical Cosmetics Ltd (2008) 12 SC 68. He insisted that the effect of framing two issues for determination from one ground of appeal was that the issues so framed ought to be disregarded, relying on the case of Magit – V. University of Agriculture (2005) 12 SC (Pt. 1) 122. He urged the court to hold that there were no arguments in support of the entire ground one and, that it be regarded as abandoned.

On behalf of the fist respondent, learned counsel conceded that only a single issue for determination could emanate from a ground of appeal and that where two issues were formulated from a single ground of appeal, the incompetent issue would be struck out. He, however, added that where competent and incompetent issues were argued together, the appellate court, after striking out the incompetent issue, could still consider the argument in respect of the surviving one. He relied on the cases of Akpan V. Bob (2010) 4 – 7 SC (Pt. 11) 57 at 107 – 110 and 112 – 114; Ogbe V. Asabe (2009) 12 SC (pt. 111) 37 at 52. He urged the court to strike out issue two leaving issue one which was the competent issue arising from ground one of the notice of appeal. He contended that even though it was stated, in the appellant’s brief, that the two issues were argued together, the entire arguments could sustain issue one alone and that issue two was superfluous and was not even argued at all. He noted that, assuming, without conceding, that issue one did not properly capture the argument thereunder, the court had the power to reformulate the issue if that would serve the ends of justice, citing the case of Dakabirikim V. Emefor (2009) 7 SC 48 at 70.

Regarding issue three, learned counsel for the appellant argued that issues for determination must flow the notice and grounds of appeal, relying on the cases of UTB Ltd V. Dolmetsah pharmacy (Nig) Ltd (2008) 1 FWLR (Pt. 402) 7613 at 7632; Benson Ojegbe V. Kent Omatsone (1999) 6 NWLR (Pt. 608) 592 at 597; Falola V. UBN PLC (2005) 2 SC (pt. 11) 62; Magit V. University of Agriculture (supra); Stirling Civil Eng (Nig) Ltd V. Yahaga (2005) 2 SC 124; Agbareh V. Mimira (2008) 1 SC (Pt. 111) 88. He reproduced ground one in the notice of appeal and the two issues formulated from it. He noted that on issue one, there were no complaints in the ground that the bank failed to disclose the interest of the appellant for it to be heard. He persisted that a careful reading of ground one clearly showed that there was no appeal complaining, either in the ground itself or in the particulars that the appellant quarreled with the fact or law that the garnishee did or did not disclose its interest. He reasoned that the appellant, having failed to complain against that part of the judgment, it could not form the basis for the argument in the appeal. He cited the case of Magit V. University of Agriculture (supra) in support of the contention.

On the contrary, learned counsel for the first respondent argued that issue one, which he had prayed the court to sustain, arose from ground one. He took the view that the appellant would not be subject to the fist respondent’s own understanding of the ground, particularly when its particulars had explicitly shown what the complaint was all about. He referred the court to page 306 of the record and the appellant’s arguments in paragraphs 1.0.7 to 1.1.4 of its brief of argument where the Judgment of the lower court was referred to. He prayed the court to toe the line of substantial justice as against technical justice in dismissing the issue. He concluded that the appellant had discharged the burden envisaged by the first respondent thereby making that ground of objection frivolous. He, finally, urged the court to dismiss the preliminary objection.

Resolution of the Preliminary Objection:

In resolving the issues formulated and argued in the first respondent’s preliminary objection, I will take them seriatim. To this end, I will kick off with a consideration of issue one. I must perforce place on record that I agree with the appellant, without any reservations, that there is a serious disconnect between the first respondent’s ground of objection and his argument on the parties. In the former, his complaint is that proper parties in the lower court were not made parties to the appeal. In the latter, his grouse is that the third and fourth respondents are not proper parties in the appeal. I must confess, with due reverence to the appellant’s learned counsel, that I find it difficult to fathom out the gravamen of the appellant’s complaint. Besides, as if that ambivalent situation is not enough, the preliminary objection was not argued based on the grounds it was predicated. The appellant formulated two issues for determination and this issue one was not part of those issues. The whole arrangement thing is as confusing as it is incomprehensible.

However, my little understanding of the appellant’s quarrel on the issue is on joinder or non joinder of the third and fourth respondents to the appeal. In this wise, I have given a merciless scrutiny to the record of proceedings in the lower court. In the original motion ex parte that, eventually, ignited this appeal, contained on page 2 of the record, the third and fourth respondents were the second and third judgment debtors/respondents respectively in the proximate motion on notice, which sparked off the appeal, found on page 132/124 of the record, the third and fourth respondents maintained their original nomenclatures and positions in the originating process. Ditto in this appeal: I decided to trace the parties from the originating process to demonstrate that the third and fourth respondents had always been parties to the garnishee proceedings ab initio. On this score, I beg to differ with the appellant’s stance and submission that the parties in this court were not the parties in the garnishee proceedings or that the third and fourth respondents were not parties to those proceedings. The point must be drummed home that the appellant lacks the capacity and vires to change parties by excluding or including any parties, see S.S. (Nig) Ltd A.S. (Nig) Ltd (2011) 4 NWLR (pt. 1238) 596. Exultantly, the appellant has not offended this age long rule of law. The above highlights make mincemeat of the first respondent’s contention.

At any rate, the joinder, non-joinder or misjoinder of the third and fourth respondents is not potent enough to put paid to the appellant’s appear as, vigorously, canvassed by the learned counsel for the appellant. The reason is not far-fetched. The law has inched away from the learned counsel’s inviting viewpoint. The current position of the law is that non-joinder or misjoinder of party or parties will not defeat any proceedings by divesting a court of its jurisdiction to adjudicate over them because such party or parties can be included or exclude by the adjudicating court in keeping with it relevant rules. In the case of Anyanwoko V. Okoye (2010) 5 NWLR (Pt. 1188) 497 at 515 – 516, Tabai JSC stated:

“…The non-joinder or misjoinder of a necessary party is only a procedural irregularity which can be corrected in the course of the proceedings by recourse to the relevant Rules of Court and does not in any wag affect the jurisdiction of the court or competence of the suit.”

See, also, Okoye V. Nigerian Construction & Furniture Co. Ltd (1991) 7 SCNJ (Pt. II) 365; Bello V. INEC (2010) 8 NWLR (Pt. 1196) 342; Sapo V. Summonu (2010) 11 NWLR (Pt. 1205) 374; Iyere V. B.F.F.M Ltd (2008) 18 NWLR (Pt. 1119) 30.In the light of the foregoing, it can be gleaned that no matter the angle the issue is looked at, it, obviously, meets a brick wall so that it cannot yield fruit for the first respondent objector. In effect, I resolve this issue against the first respondent.

That brings me to an examination of the second issue. The hub of the appellant’s complaint thereon is that the two issues were wrongly framed from one ground of appeal. The state of the law on this issue is not a moot point. Whereas one issue for determination can germinate from a mono or a singular ground of appeal, one ground of appeal cannot given birth to two or more issues for determination. The latter situation smacks or reeks of proliferation or multiplication of issues which the law, seriously frowns upon, see Duwin Pharmaceutical & Cosmetics Ltd v. Beneks Pharmaceutical & Cosmetics Ltd. (supra); Magit V. University of Agriculture (supra); Eke V. Ogbonda (2006) 18 NWLR (Pt. 1012) 506; Okwuagbala V. Ikwueme (2010) 19 NWLR (Pt. 1226) 54; Okonobor D.E. & S.T. Co. Ltd (2010) 17 NWLR (Pt. 1221) 181.It stems from the foregoing that the appellant ran foul of this cardinal principle of law when it generated two issues from its ground one of the appeal. Nevertheless, I am loath to invoking this hallowed rule of law against the appellant. This is because it, the appellant, at the earliest opportunity of reacting to the first respondent’s preliminary objection, conceded to doing violence to the law and applied for a striking out of issue two leaving issue one. On account of that concession and early supplication, I am minded, in the overriding interest of doing substantial justice, to acceding to the appellant’s request or application.

In this regard, I draw on the case of Akpan V. Bob. (supra) (2010) 17 NWLR (Pt; 1223) 421 at 517 wherein Onnoghen, JSC, lucidly, observed:

“There is no law against arguing two or more issues together in a brief of argument. The practice is encouraged for its convenience to both the parties and the court as it is designed to save time and avoid repetition of argument.

In the process of arguing many issues together there can be the error of arguing valid issues together with invalid issues, such as arguing issues not arising from the grounds of appeal together with those that arise from the grounds of appeal or arguing an issue on a ground of appeal not arising from the judgment appealed against, etc, etc. Where such a situation arises, the law is settled that the invalid issue together with the argument proffered in support thereof must be struck out, ns happened in the instant case.

However, where the argument in support of the surviving valid issue(s) is clearly identifiable from the argument in support of the struck out issue and argument in support of same, as in the instant case, the court is enjoined to do substantial justice between the parties having regards to the facts and. circumstances of the case by relying on the argument proffered in support of the valid surviving issue in resolving the issue in controversy between the parties particularly where to do so would not result in a miscarriage of justice, as in the instant case. To do otherwise amounts to doing justice according to technicalities which is frowned upon by the court?”

See, also, Ogbe V. Asade (Supra) / (2009) 18 NWLR (Pt. 1172) 106.

In the circumstance, I will grant the appellant’s timely application to weed out issue two as unwholesome to the appeal especially as it will meet the ends of justice. I am further emboldened by the bald fact, after winnowing the submissions on the two issues, that there are no arguments to buttress the floating issue two. Accordingly, the appellant’s issue two be and is hereby struck out from this appeal same having been withdrawn by learned counsel for the appellant. With the expunction of that issue two, the appellant’s issue one comes, squarely, within the province of the law in the sense that it is the only issue flowing from ground one of the appeal. In all, I resolve issue two against the first respondent.

I now move to settle issue three. The fulcrum of the issue is that the appellant’s issue one does not arise from its ground one of the appeal. I, completely, fall in with the contention of the first respondent that an issue for determination must flow from a ground(s) of appeal otherwise such issue will be rendered incompetent while the ground, which has not given rise to any issue, will become abandoned, See UTB Ltd V. Dolmetsch Pharmacy (Nig) Ltd (supra); Benson Ojegbe V. Kenh Omatsone (supra), Magit V. University of Agriculture (supra); Stirling Civil Eng. (Nig) Ltd V. Yahaya (supra); Agbarch V. Mimira (supra); Odunze V. Nwosu (2007) 13 NWLR (Pt. 1050) 1; Aderibigbe V. Abidoye (2009) 10 NWLR (pt. 1150) 592; Ukiri V. Geco Prakia (Nig) Ltd (2010) 16 NWLR (pt. 1220) 54; Eke V. Ogbonda (supra); Dakolo V. Rewane – Dakolo (2011) 16 NWLR (Pt. 1272) 22; Ifegwu – V. UBN Plc (2011) 16 NWLR (pt. 1274) 555.

Given the above position of the law, have the appellant’s issue one and ground one satisfied the requirement of the law? To procure a deserving answer to this query, I will pluck out ground one with its accompanying particulars, from page 310 of the printed record, and issue one, from paragraph 009 on page 3 of the appellant’s brief of argument. They respectively state.

“3. GROUNDS OF APPEAL

Ground 1:

Error of Law:

The Learned trial Judge erred in Law when she ruled that the Appellant was not supposed to be part of the garnishee proceedings.

1. The Appellant is the owner of the account sought to be garnisheed.

2. The Appellant does not owe the judgment debtor.

3. The Appellant was not a party to the trial proceedings

4. That the Applicant has sufficient interest in the Application”

“0.0.9 From the grounds stated above, the Appellant submits the following issues for … determination.

1. Whether in the event that the garnishee i.e. the banks have failed to disclose the interest of the appellant in a garnishee proceedings, the appellant can yet not be heard.”

I have juxtaposed, or married the reproduced ground one of the appeal with the recited issue one formulated by the appellant. In my view, the said issue one radiates directly from ground one of the appeal. I dare say the issue is a direct off shoot of the ground of appeal. In holding this view, I take into cognizance the meat of the appellant’s complaint in the appeal. The resume of its grievance is that the two garnisheed accounts in the Union Bank of Nigeria Plc and the Unity Bank Plc belonged to it and ought not to be garnisheed whether or not the two garnishees disclosed their ownership of them. Hence, it appealed to have the orders nisi and absolute vacated. By the same token, ground of the appeal, sought to be impugned, is traceable to the ratio decidendi in the judgment of the lower court, id est, that the appellant’s financial or fiscal interest in the two garnisheed accounts were never unveiled by the two garnishees in consonance with the law. For a good measure, the particulars, concomitant with the said ground one, have amply and clearly performed their assigned main or principal function of throwing or shedding light on the complaints against the lower court’s decision which is sought to be decimated, see Osasona V. Ajayi (2004) 14 NWLR (Pt. 894) 527; Nsirim V. Nsirim (1990) 3 NWLR (Pt. 138) 285. The above reasons, to my mind, have torpedoed the alluring submissions of the first respondent on this issue. In sum, I resolve the issue (three) against the first respondent.

Overall, having resolved all the three issues for determination against the first respondent, the preliminary objection, automatically, stands on a weak wicket. The implication is that it is ill-fated. Consequently, I overrule and dismiss the preliminary objection for want of merit. Accordingly, I shall proceed to consider the appeal on the merits.

Consideration of the appeal:

Originally, the appellant, in its brief of argument, crafted three issues for determination. However, it will be recalled that one of them, issue two, had been excised from the proceeding of this appeal. With that, the appellant is left with the two issues for determination of the appeal to wit:

“1. Whether in the event that the garnishee i.e. the banks have failed to disclose the interest of the appellant in a garnishee proceedings, the appellant can yet not be heard.”

2. Whether the lower Court was not in error when it refused to rule on the merit of the application, issues having being joined by the party.

Exultantly, the first respondent adopted the two issues distilled by the appellant.

Argument on the issues:

On issue one, learned counsel for the appellant submitted that garnishee proceedings were special proceedings guided by part V of the Sheriffs and Civil Process Act, Cap. 56, Laws of the Federation of Nigeria, 2004 and the various Courts Civil Proced.ure Rules and in the appeal, the Federal High Court Civil Procedure Rules. On the nature of garnishee proceedings, learned counsel reproduced the provision of Section 83 of the Sheriffs and Civil Process Act and referred to Order 37 Rules 1 and 2 of the Federal High Court (Civil Procedure) Rules and the cases of Denton-West V. Muoma, SAN (2008) 6 NWLR (Pt. 1083) 418 at 442; Citizen Int’l Bank V. SCOA (Nig) Ltd (2005) 18 NWLR (Pt. 1011) 332 at 346.

Learned, counsel further submitted that the underlining factor was that the property in the hand of the garnishee must be one belonging to the judgment debtor and no one else and that was the fact expected of the garnishee by his affidavit to show cause under section 87 of the Sheriffs and Civil Process Act and Order 37 Rule 5 of the Federal High Court (Civil Procedure) Rules. He referred the court to the affidavit to show cause of Ndubusi N. Ogbodo, Esq, for Union Bank of Nigeria Plc on pages 187-216 of the record, that of Ibrahim. Adebara for Unity Bank Plc on pages 77 – 78 and 280-2894 of the record and Elizabeth O. Ajayi for Unity Bank of Africa Plc. He noted that the appellant only showed its interest in Union Bank Plc, Account No. 5141060000065 and Unity Bank plc, Account No, 259/6699907/1/1/0.

He reasoned that it was apparent, from the record of proceedings, particularly the affidavits to show cause filed by both the union Bank of Nigeria Plc and Unity Bank Plc, that the interest of the appellant was not specifically or categorically stated and, perhaps, that was why the lower court reached the findings, on pages 305-306 of the record, to the effect that it was the garnishee that was to notify the court and the garnishee never stated that the appellant owned the accounts. He took the view that the reproduced holding of the lower court could not be the true interpretation of section 88 of the sheriffs and civil Process Act wherein the working phrase was when “it is suggested by the garnishee that the debt sought to be attached belongs to some third person.”

It was learned counsel’s further submission that “suggestion” as contemplated by the Act did not mean to “State categorically? As held by the lower court. He called the court is attention to the meanings of “suggest” and “suggestion” as contained in the Black’s Law Dictionary, 6th Edition on page 1433. He maintained that, from the definitions of those words, what was required under section 88 of the Act was an indirect introduction or a hint of the third party’s interest and not a statement of the claim of such interest. He referred the court to paragraphs 4 and 5 of Ndubuisi Ogbodo’s affidavit to show cause filed on behalf of Union Bank Plc for account No. 5141060000063, on page 188 of the record, and insisted that the depositions satisfied the requirement of the law and that a hint of the appellant’s interest had been given to the lower court which saw it, but never considered.

He intimated the court that the claims in suit No. FHC/IL/CS/6/2006, upon which judgment was given, was between the first respondent and, the second to the fourth respondents and the appellant was not made a party to the suit. He stated that a court would not make an order affecting a person who was not a party before that court, relying on the cases of A.G., Lagos State V. A.G., Fed. (2004) 18 NWLR (Pt. 904) 16; Kasimu V. NNPC (2008) 2 NWLR (pt. 1075) 569 at 586; Omiyale V. Macaulay (2009) 7 NWLR (pt. 1141) 5097 at 621. He added that the facts deposed to in paragraphs 4-15 of the affidavit of Mr. Odewunmi Gideon Oyelowo with its annexure, on pages 126 – 127 of the record that of Engr. Clement Ohida in paragraphs 5 – 8 with its annexure, on pages 134 – 135 of the record and the reply to counter-affidavit of Mr. Odewunmi Gideon Oyelowo in paragraphs 4-12, on pages 233 – 234 of the record, were all to the affect that the appellant was a body created by the Federal Government only to manage the pension scheme of the first respondent and that the appellant was directly responsible to the office of the Head of Service and Federal Ministry of Finance rather than the first respondent; and that the monies standing in the account were monies in the names of individual pensioners.

Learned counsel took the stand that the monies standing in the names of individual pensioners in the accounts of the appellant could not be garnishee and the lower court was wrong in refusing to vacate the order nisi when it was shown that the accounts did not belong to the first respondent. He persisted that the appellant could be heard to show its interest in the garnisheed accounts once the garnishees had failed to disclose its interest at the lower court under section 88 of the Act else it would be held to have stood by when there was a dispute on its property, citing the case of Bello – V. Fayose (1999) 7 SCNJ 286 at 295. He added that the appellant was aware of the pending proceedings and had timeously taken steps to put his interest into issue before the lower court. He concluded that the justice of the proceedings could best be seen to be done only when the appellant was heard on its application and the same considered because the duty of the court was to do justice. In support of that view, he relied on the cases of Ajuwa V. SPDC (Nig) Ltd (2008) 10 NWLR (Pt. 1094) 64 at 98; Awure V. Iledu (2008) 12 NWLR (Pt. 1098) 249; Amaechi V. Okoye (2008) 12 NWLR (Pt. 1101) 546 at 579; Obajimi V. Adediji (2008) 3 NWLR (PT. 1073) 10. Learned counsel urged the court to hold, in the circumstances of the case, that the appellant ought to be heard and that its accounts ought not to be garnisheed.

On behalf of the first respondent, its learned counsel stated that the appellant abandoned the affidavits. He referred to and reproduced paragraphs 4, 5, 13 and 14 of the affidavit of Ndubuisi Ogbodo, dated 29/12/2008, filed on behalf of the Union Bank of Nigeria Plc (the first garnishee) and paragraphs 4(a), (b) and (c) and 5 of the further affidavit of Ibrahim Adebara dated 21/05/2009, filed on behalf of the Unity Bank Plc (the second garnishee) and noted that in those affidavits, filed to show cause, garnishees did not mention that the money in the accounts that were attached was claimed by any one at all or by the Board of Trustees. Learned counsel, then, insisted that the lower court was right when it dismissed the appellant’s application.

Learned counsel reiterated the point that all the garnishees agreed that the accounts in question belonged to the second respondent and that none of the accounts was in the name of the appellant as all bore the legal person “limited” incorporated company under the Act with Board of Trustees. He repeated that the appellant was very strange to the disputed accounts as there was none with the garnishee in its name and that the limited was removed making it a non-limited liability company. He placed reliance on section 37 of the Companies and Allied Matters Act.

He argued per contra that it was the garnishee that ought to raise the issue that the account belonged to another party, but it did not rather it stated that it belonged to the second respondent. He posited that there was no dispute as to the ownership of the account kept by the garnishee as it knew who the account holder was the second respondent. He noted that the appellant never raised the issue with the garnishees nor complained to them. He stated that under section 88 of the Sheriffs and Civil Process Act, it was the garnishee that ought to raise the facts and persisted that the lower court was right when it refused the appellant’s application. He urged the court to dismiss the claim.

On points of law, learned counsel posited that the appellant never expressly or impliedly abandoned any of the affidavits; adding that the mere quoting of an affidavit to support an assertion did not mean abandonment. He urged the court to take judicial notice of the record of appeal which was binding on it and the parties. He submitted that the first respondent’s argument, on page 9 of its brief, could have been answered if the lower court had considered the merit of the appellant’s application and ruled on it one way of the other as the justice of the case at the point demanded that’ the court, in doing justice, ought to carefully look at all the facts contained in the affidavits of all the parties, consider the issue of the ownership of the accounts and resolve same, relying on the cases of Ajuwa V. SPDC (Supra); Awure V. Iledu (supra); Amaechi V. Okoye (supra); Obajimi V. Adediji (supra); Amaechi – V. INEC (2008) 5 NWLR (Pt. 1080) 227 at 315 and 325.

Regarding issue three, learned counsel for the appellant contended that there were some salient issues raised and addressed by counsel to the parties which the lower court failed to consider to wit’. “1. Whether the Appellant was a legal entity which can sue and be sued and who could bring the application before the Court; 2. Whether the Appellant is autonomous and independent of the 1st respondent i.e. Ajaokuta Steel Company Ltd; and whether the accounts garnished belong to the Appellant or the 1st respondent i.e. Ajaokuta Steel Company Limited.” Learned counsel insisted that the lower court, in its 17 – paged judgment, on pages 292-309 of the record of proceedings, failed to rule on those issues which would have directed her mind otherwise in its decisions. He then submitted that a court was bound to consider every material issue put before it at arriving at a just decision in a case, citing the case of FCE Pankshin V. Pusmut (2008) 12 NWLR (pt. 1101) 495 at aha; Adebayo V. A.G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 215; Abubakar V. Yar’adua (2009) NWLR (pt. 1120) 1. Finally, Learned Counsel, or the basis of the above arguments, urged the court to allow the appeal and set aside the decision of the lower court.

Contrariwise, learned counsel for the first respondent contended that the pre-conditions for a third party to be joined in garnishee proceeding must be met before a party could bring itself into it because where a statute had provided for a way of doing a thing that way must be followed. He placed reliance on the cases of Kemba V. Bawa (2005) 4 NWLR (Pt. 611) (sic) 74 – 76, citizen Int’l Bank V. SCOA (Nig) Ltd. (supra); section 88 of the Sheriffs and Civil Process Act. He took the view that in the garnishee proceeding, there was an unchallenged and uncontroverted fact from the garnishee that the account belonged to the second respondent and since it was admitted, the lower court was right to believe and act on it, citing the case of Citizen Int’l Bank V. SCOA (Nig) Ltd (supra) in support of his view. Learned counsel added that the garnishee proceeding was a special proceeding and that in that case the garnishee admitted that the account belonged to the second respondent, but without the leave of court the third party filed a motion claiming to own it in different name and made itself a party requesting to discharge the order that was not in contest. He argued that the lower court was right when it ruled that none of the garnishee stated, in its affidavit to show cause, that the appellant owned those accounts.

He posited that there was nothing in the rules that allowed a third party to crash into the proceedings and set aside the special proceedings of the court. On the strength of the foregoing submissions, he urged the court to dismiss the appeal.

On points of law, learned counsel for the appellant submitted that the provisions of section 88 of the Sheriffs and Civil Process Act could not stop a “party”, whose account had been wrongly attached, from approaching the court to state its interest rather than leaving its fate hanging on nonchalant banks; more so when the said section 88 of the Act empowered the court to order such third party to appear and state the nature and particulars of his interest.

Resolution of the issues:

In considering the issues, I will attend to the duo issues in their numerical sequence. That is to say, I will take off with issue one. The kernel of the appellant’s complaint on the issue is that the attached accounts belong to it and same should not have been attached since it was not a party to the garnishee proceedings. This, in turn, revolves around the interpretation of the provisions of section 88 of the Sheriffs and Civil Process Act.

Before delving into the nucleus of the issue, it is germane to appreciate the import of garnishee proceeding. Garnishee proceeding a derivative of “Garnish”, a French word that connotes “to warn”, is a mode of execution or enforcement of monetary judgment whereby money belonging to a judgment debtor, in the hands or possession of a third party, the garnishee, is attached or seized by a judgment creditor, the garnisher or garnishor, in satisfaction of a judgment sum or debt obtained by the latter against the former. It is a special specie or class of enforcement of money judgment where the ordinary methods of execution are inapplicable. By the process, the court is imbued or endowed with the power to order a third party to pay a judgment debt directly to a judgment creditor a debt due or accruing due from a judgment debtor or as much of it as may be sufficient to satisfy the judgment sum and the costs of the garnishee proceedings. In practice, a judgment creditor makes an ex parte application to the court which issues order nisi, a Norman French word meaning “unless”, against a garnishee which it makes absolute if the garnishee is unable to show good cause, see, Citizens Int’l Bank V. SCOA {Nig} Ltd (supra); Denton-West V. Nuoma (supra); U.B.N Plc V. Boney Marchis Ind. Ltd. {2005} 13 NWLR (pt, 943) 654; Purification Tech (Nig) Ltd V. A. G., Lagos State (2004) 9 NWLR (Pt. 879) 665; F. M. B. N. Ltd V. Desire Gallery Ltd (2004) 13 NWLR (Pt. 891) 522; N.A.O.C. Ltd V. Ogini (2011) 2 NWLR (Pt. 1230) 13; section 83 of the Sheriffs and Civil Process Act and Order VIII judgment (Enforcement) Rules, Cap 56, Law of the Federation of Nigeria, 2004; Order 37 of the Federal High Court (Civil Procedure) Rules, 2009.Having brought out the gist of garnishee proceeding to the limelight, I return to the thrust of the issue, that is, construction of the provision of section 88 of the Sheriff and Civil Process Act which provides:

“88. Lien or claim of third person in debt. Whenever in any proceedings to obtain an attachment of a debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person or that any third person has a lien or charge upon it, the court may order such third person to appear particulars of his claim upon such debt.”

See, also, the provision of Order 37 Rule 6 of the Federal High Court (Civil Procedure) Rules, 2009 which is in the mould of the provision of section 88 of the Act.

From the reproduced provision of section 88 of the Sheriffs and Civil Process Act, it is axiomatic that it is a garnishee, a person, body or institution that is indebted to or is a bailee for another, whose property has been subjected to garnishment, that is laden with the bounden duty to suggest to or intimate a court that a judgment debt sought to be distressed belongs to a third party, other than the judgment debtor, or that he has a lien or charge on it. In this perspective, I have employed the ubiquitous literal canon of interpretation of statutes. The ancient rule is to the effect that when the words and provisions of any legislation are clear, precise and unambiguous, a court should give them their ordinary grammatical meanings without any embellishment or interpolations see A. G., Fed V. Abubakar (2007) 10 NWLR (pt. 1041) 1; Olofu V. Itodo (2010) 18 NWLR (Pt. 1225) 285; Agbiti, V. Nigerian Army (2010) 14 NWLR (PT. 1236) 175; Oyegun V. Nzeribe (2010) 7 NWLR (Pt. 1194) 577; Taiwo V. Adegboro (2011) 11 NWLR (Pt. 1259) 552. Interestingly, the appellant, in its fascinating submission, conceded that it is a garnishee that is saddled with the responsibility of notifying the court of a third party interest in a judgment debt. The appellant’s quarrel, however, is that such notification must not be categorically stated, hence indirect suggestion would suffice. I will return to this adjunct point in the fullness of time in this judgment.

Now, did the garnishees suggest that the attached bank accounts belong to the appellant? To begin with, it seems to me that it is the affidavit evidence of the garnishees, as encapsulated in their different affidavits to show cause that will be used to discern whether or not they suggested to the lower court that the attached bank accounts belonged to the appellant. In this connection, the two relevant garnishees are the Union Bank of Nigeria Plc and the unity Bank Plc. To this effect, I will cull from the record of appeal the crucial portions of the affidavits of the two garnishees to show cause. In this regard, paragraphs 1, 3, 4, 5 and 6 of Ndubuisi N. Ogbodo’s affidavit, sworn on behalf of the first garnishee, the Union Bank of Nigeria Plc, found on pages 187/196-188/197 of the printed record, are of note. He averred as follows:

“1. That I am the Business Development Centre Legal Officer of the 1st Garnishee (Union Bank of Nigeria plc) at its zonal office Ilorin.

3. That I have the consent and authority of 1st garnishee to depose to this affidavit in obedience to the invitation of this Honourable Court in respect of the pending garnishee proceedings.

4. That from the subsisting order of this Honourable court, I am aware that this court has garnisheed the money in the accounts of the 1st judgment debtor/respondent with the Union Bank of Nigeria Plc (1st Garnishee) Ajaokuta Branch.

5. That the 1st judgment debtor (Ajaokuta Steel Company Limited) has an account with the closing balance as at 31st October 2008: Account Number: 5141060000063 Account Name: Board of Trustee Ajaokuta (ASCOL).

CLOSING BALANCE: N6, 818, 131.39

6. That the copy of statement of account in respect of the aforesaid account in respect of the aforesaid account is hereby attached and marked EXHIBIT A”. (Underlining mini).

Similarly, the averments in paragraphs 1 and 14 in the counter-affidavit of Ibrahim Adebara, contained on page 152/153 of the record, and depositions in paragraphs 1, 3, 4 and 5 of his further and better affidavit, found on pages 280 – 281 of the record, sworn to on behalf of the second garnishee, Unity Bank plc, come in hand. In the counter affidavit, he deposed:

“1. That I am the litigation clerk the firm of Bello, Bello & Co., (Solicitor to Unity Bank Plc) a Garnishee in this matter.

4. That I was informed by my principle (sic) Mr. Abbas B. K. Bello, of counsel and whom I verily believed that the total sum left in the account of the 1st judgment debtor  is N804, 564.87K which is not sufficient to satisfy the judgment sum. A copy of the statement of account is attached and marked Exhibit “C”. (Underlining mine)

In the said further and better affidavit, he, Ibrahim Adedara, deposed as follows:

“1. That I am the litigation clerk in the firm of Messrs Bello, Bello & Co. (Solicitor to Unity Bank) and the 2nd Garnishee in this matter.

3. That I have the authority of my principal and that of the garnishee in this matter to depose to this affidavit.

4. That I was informed by my principal of counsel and whom I verily believe that:

a. He approached the manager of Unity Bank (Main Branch) at Murtala Mohammed Way, Ilorin on the 7th day of May, 2009 for an up-to-date or current Statement of Account of Jaokuta Steel Co. Ltd. starting from the 1st day of February, 2008 to the 30th day of October, 2008.

b. The Manager responded by providing once again, the statement of Account No. 669907/001/000 dated the 7th day of May, 2009 from the 1st day of January, 2008 to the 30th day of June, 2008.

c. The said Statement of Account mentioned in paragraph 4(b) supra had as at the 30th day of June, 2008, the sum of N804, 564, 87 being the closing balance and end of any other transaction (s) on said Account of Ajaokuta Steel Co. Ltd. A copy of the said Statement Account No. 669907/001/000 is herewith attached is AND MARKED AS Exhibit “A”

d. The Regional Offices of Unity Bank Ltd. at both Minna and Ibadan were equally contacted on this matter and they also confirmed that the facts deposed to in paragraphs 4(a) and (b) supra as being true and correct state of the said Account in issue mentioned in the above paragraphs.

5. That it will be in the interest of justice to accept and/or admit this statement of Account being the only available statement of Account of Ajaokuta Steel Co. Ltd.” (Underlining mine)

I have given a microscopic examination to the above reproduced affidavits. To my mind, the underlined portions therein clearly and amply reveal that the owner and holder of the two attached accounts with the two garnishee banks, Union Bank of Nigeria Plc and Unity Bank Plc, is Ajaokuata Steel Company Limited, the first judgment debtor/respondent in the garnishee proceedings in the lower court. Indeed, its name runs through and is a recurring decimal in those affidavits to show cause, pointedly implying that it, and none other, is the owner of the two attached accounts.

The appellant had alluded to the mention of “Account Name: BOARD OF TRUSTEES AJAOKUTA (ASCOL)” in the affidavit of Ndubusi N. Ogbodo sworn for the first garnishee, Union Bank of Nigeria plc, and capitalized on same as an indirect suggestion that the appellant is the owner of that account.

Even though that is a dazzling argument, nonetheless, I am not in the least prepared to accept it as it does not cut ice with me or the law. In the first place, the signal and elementary rule of construction of document, like Ndubuisi Ogbodo’s affidavit, is that it is to be read holistically and harmoniously by looking at what comes before and. after a passage sought to be interpreted in order to garner or discern the purport of the passage. In the case of Nigerian Army V. Aminu – Kano (2010) 5 NWLR {Pt. 1188} 429 at 457, Muhammed, JSC, stated:

“…Although, Exhibit P45 is not an Act of parliament or a piece of any legislation, it is a document written with a particular purpose. In order to read the mind of the maker/author of that document it is necessary to subject such document to an appropriate rule of interpretation that a passage is best interpreted by reference to what precedes and what follows it.

This makes it mandatory for one to read the whole passage or document and every part of it should be taken into account.”

See, also, Artra Ind. Nig. Ltd V. N.B.C.L. (1998) 4 NWLR (Pt. 546) 357/ (1998) 3 SCNJ 97; Unilife De Co. Ltd V. Adeshigbin (2001) 4 NWLR (pt. 704) 609/ (2011) 2 SCNJ 116.I have subjected the passage, pulled out from Ndubuisi N. Ogbodo’s affidavit, to this cardinal rule of interpretation of documents. In paragraphs 3, 4 and at the dawn of paragraph 5 of that affidavit, the defendant, Ndubuisi N. Ogbodo, unequivocally stated that the attached account with the first garnishee belonged to the second respondent, Ajaokuta steel company Limited, the first judgment debtor/respondent in the garnishee proceedings in the lower court. The point I am labouring to ram home is that prior to that passage, the deponent had named the second respondent, both in name and judicial nomenclature, as the undourbted and undisputed holder of account number 5141060000053 with the first garnishee bank. I am fortified in my reasoning by the fact that the name written in the extracted passage, Board of Trustee Ajaokuta (ASCOL), is not synonymous with nor acronym of the appellant Ajaokuta Steel Company Board of Trustees of Staff Pension Scheme. In the aggregate, to take the passage in the isolation, as did the appellant and brand it an indirect suggestion that the appellant is the owner of that attached account, is an affront to the agelong rule of communal interpretation of documents.

Besides, there is another pitfall in the appellant’s claim that constitutes hiccups in the terrain of its appeal. The flaw has to do with the account too. Indisputably, the second respondent’s attached account with the first garnishee is account number 5141060000063 as per the order of the lower court made on 15/10/2008, but drawn up on 16/10/2008 as manifested on pages 137/145 and 225/231 of the printed record. Contrariwise, in the appellant’s motion paper, the dismissal or refusal of which snowballed into this appeal, its prayer is for a vacation of the order nisi made against its account number 5141060000065 with the first garnishee, Union Bank of Nigeria Plc. Thus, there is a wide dichotomy or chasm between account number 51411060000065, which the appellant claims as its own, and account number 5141060000063, belonging to the second respondent, that was attached dint of the garnishee proceedings conducted in the lower court. It is my view that the above reasons have, adequately, taken care of the heavy weather the appellant made about the words “suggest” and “suggestion” in relation to the provision of section 88 of the Sheriffs and Civil Process Act.

In the end, on account of the above analyses, the appellant’s contention that the first garnishee, Union Bank of Nigeria Plc, made an indirect suggestion that it is the owner of the attached account holds no water and it falls flat.

It was part of the contention of the appellant that it could be heard to show its interest in the garnisheed accounts once the garnishees failed to disclose its interest, in the lower court, under section 88 of the Sheriffs and Civil Process Act. That viewpoint, though very inviting, is miles away from the position of the law. The law is that where an enactment, the Sheriffs and Civil Process Act via section 88 thereof, bestows on or vests in a particular person, body or authority a specific duty to perform, it is only that person, body or authority, and none other, that can do that assignment. Anything short of this cannot be endorsed by the law. In the case of Emuze C., University of Benin (2003) 10 NWLR (pt. 825) 378 at 401, Iguh, JSC, opined

“…where a statute confers specific or special power on any person or authority for the performance of certain acts or duties, it is only that person or duties, it is only that person or authority and no other person that is contemplated in the performance of such acts or duties under the relevant law. He must also act in strict accordance with the power vested in him by the relevant statute and may not exceed such power.”

See, also, Garba University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, Balonwu Go, Anambra State (2008) 16 NWLR (pt. 1113) 236; Savannah Bank of Nigeria Ltd. Ajilo (1989) 1 NWLR (pt. 97) 305 UBN Ayodare & Sons (Nig.) Ltd. (2007) 13 NWLR (pt. 1052) 567 or (2007 4 KLR (pt. 235) 2003. The corollary of the above state of the law is that a mandatory method decreed by a statute for doing anything must be followed to the letter or the act remains unaccomplished waiting to be nullified by the court, see Inakoju V. Adeleke (2007) 4 NWLR (Pt. 1025) 427; Nwankwo Yar’adua (2010) 12 NWLR (pt. 1209) 518; N. S. I. T. F. M. B. Klifco (Nig,) Ltd. (2010) 13 NWLR (pt. 1211) 307; Papersack (Nig.) Ltd. Odutola (2011) 10 NWLR (pt. 1255) 244; Amaeachi INEC (Supra) Oloruntoba Oju Abdul-Raheem (2009) 13 NWLR (pt. 1157) 83. In the case in hand, the prescription of section 88 of the Sheriffs and Civil Process Act has duly donated to a garnishee the power to suggest to a court that a debt sought to be attached belongs to a third party or that a third party has a lien or charge on a judgment debt. In due obedience to this allotted power, the first and second garnishees pointed at the second respondent Ajaokuta Steel Company Limited, as the owner of the attached accounts and not the appellant. It is not within the province or domain of the appellant to exercise this all important power that is not accorded to it. To law has exhibited great wisdom in giving this critical this power to the garnishee. It is only the garnishee that is in the best position to assert whether or not he is indebted to a judgment debtor. It is not for the appellant to insist that the garnishees are indebted to it when the latter persist that they are indebted to the second respondent. To accede to the appellant’s request will not only offend the sacrosanct provision of section 88 of the Act, but it will open floodgates for people to claim judgment debts not belonging to them. The law is greater and wiser than all.

Finally, the appellant took the stance that the justice of the garnishee proceedings would best seen to be done if the lower court heard it as the duty of every court is to do justice. I am at one with the appellant that the primary role of any court of law is to do justice, and I also agree with the authorities of Ajuwa SPDC (supra); Aware Iledu (Supra); Amaechi Okoye (supra); Obajimi Adediji (supra) which were cited to buttress its stand.

Be that as it may, I must state, apace, that I am at odds with its viewpoint that the only way the lower court would done justice was to have heard it on the proceedings. The reason is simple. A court of law is enjoined to dish out justice to parties to any proceedings in consonance with the law. A court of law is not allowed to jettison or turn a blind eye to sacred prescriptions of legislation in the guise of doing justice, be it substantial justice. That would be akin to abdication of its sacred judicial duty. This is why Tobi, JSC, in the case of Dada Dosunmu (2006) 18 NWLR (pt. 1010) 134 at 166, succinctly, observed.

“The role of the court is to apply the principles of substantial justice according of law. The principles cannot be applied outside the law or in contradiction of the law. A court of law will not be performing its role as an independent umpire if it bends backward to do justice to one of the parties, at the expense of the other party. Justice, that vey expensive commodity in the judicial process, should be evenly spread between the parties.

Where a rule of court has clearly and unambiguously provided for a particular act or situation, the courts have duty to enforce the act or situation and here; the issue of doing substantial justice does not or should not arise. The party who failed to comply with the rule has himself to blame. He cannot be heard, to canvass the omnibus ground of doing substantial justice”The lower court, on pages 305-306 of the printed record, found as follows:

“…It is logical to state that since the order nisi is given against the garnishee which is holding the money attached, it is that garnishee who should be the one to notify the court of such third party claims. The section 88 of the Sheriffs and Civil Process Act is however categorical that the garnishee is the one to bring the claim of the third party to the court.

In this case, the 3rd party is Board of Trustees who brought the application claiming ownership of the attached debt. It is not upon the order of the court that it appeared and filed, the motion as it did, to make a claim to the judgment debt nor did any of the garnishees notify this court on the fact that the Board of Trustees is claiming ownership on the sums of money attached by the order nisi. The Board, of Trustees simply… claimed, interest in the money attached in the Union Bank Plc and Unity Bank plc…. Most importantly, neither the Union Bank plc nor the Unity Bank Plc in their affidavits showing cause stated that the Board of Trustees owned the stated accounts”.

I have situated the above finding with the affidavit evidence before the lower court which I had already x-rayed. I am of the view that the finding is a total reflection of the affidavit evidence which were properly appraised by the lower court. For this reason, I cannot tinker with the finding in that it is unimpeachable. On the contrary, I endorse it intoto. All in all, I resolve the issue (one) against the appellant.

Having dispensed with issue one, I now move to thrash out issue three, issue two having been expunged from the proceeding. The appellant’s trumpeard on the issue is that the lower court failed to consider the three issues it itemized or catalogued in its brief of argument. To start with, the third issue which the appellant listed as not considered by the lower court, whether the accounts garnisheed belonged to the appellant, is both in fact and in law, the substratum of the first issue that was just determined against it. That issue one, as already observed, arose from the judgment of the lower court, and, de facto, the bedrock of that decision. In other words, that issue was, elaborately, considered by the lower court in its decision. It is, therefore, unfair and wrong of the appellant to castigate the judgment of the lower court on account of failure to look into that issue when it actually did: The above cold and verifiable facts put paid to the appellant’s quarrel about that third issue.

Then, regarding the first issue and the second issue, that is, legal personality of the appellant and the appellant’s independence from Ajaokuta steel Company Limited respectively, the appellant is, also, not on a firm footing on its complaint that they were not considered by the lower court. I will justify my view anon. I have painstakingly scanned through the prolix record of proceedings of the this court, transmitted lower court as the record of appeal, but have not stumbled on a place, page or paragraph whence those issues were formulated and canvassed as issues for determination in the proceedings in the lower court. To be precise, the appellant’s application in this court, which stoked up this appeal, was briefly argued by both counsel for the appellant and the first respondent on 27/10/09. The terse arguments on the motion took – foul pages and are contained at the unpagenated part of the tail end of the record of appeal. From the unpagenated record, I discovered that counsel for the first garnishee made his input to the application on 06/05/09 while that of the second garnishee did his on 20/05/09. Subsequently, the lower court delivered its ruling on 18/06/09.

From these sparse excerpts of what transpired in the lower court, during the hearing of the appellant’s application, two pivotal points stand out. Firstly, the appellant’s main (third) issue under consideration, “3 whether the lower court was not in error when it refused to rule on the merit of the application, issues having been joined by the parties” ought not to have arisen at all. The raison d’etre for my so holding is that, from the record as dissected above, the application was duly argued by all the parties concerned. In the eyes of the law, a matter is heard on the merit when it is argued by the opposing parties and a court decides which party is right, see Oyegun Nzeribe (2010 7 NWLR (pt. 1194) 577. The above makes mincemeat of the appellant’s entire issue three. I dare say, on the authority of these ex cathedra cases, with the issue should not have cropped up at all.

Secondly, the two issues, juristic legal personality of the appellant and the appellant’s independence from Ajaokuta Steel Company Limited, were never submitted to the lower court by its counsel or any other counsel for determination as shown by their conspicuous absence from the printed record of appeal. In view of that void, is it proper for this court to consider them? I have my doubts. I am reinforced, in my doubts, by the ageless rule of law that parties and courts are bound by the records of appeal. This means that both the parties and the courts are precluded from going outside the four walls of the record in the determination of any appeal. The law does not permit me to factor into the record what is absent or to subtract from it what is there. In the case of Orugbo V. Uua (2002) 16 NWLR (Pt. 79) 175 at 205-207, Tobi JSC, stated:

“…An appellate court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read, out of the record what is there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate court must read the record in its exact content and interpret it. Of course it has the Jurisdiction to decide whether on the face of the record and, on the cold facts the decision was proper”

See, also, Ogidi State (2005) 5 NWLR (Pt. 918) 256; O. O. M. F. Ltd. N.A.C.B. Ltd. (2008) 12 NWLR (pt, 1098) 412; Ekpemupolo Edremoda (2009) 8 NWLR (Pt. 1142) 166; International Bank Plc. Onwuka (2009) 8 NWLR (Pt. 1144) 462; Sapo Sunmonu (2010) 11 NWLR (Pt. 1205) 375; Garuba Omokhodion (2011) 15 NWLR (Pt, 1269) 145.The cumulative effect of the foregoing analyses is that the appellant’s issues two heavily counts against it. In the circumstance, I resolve the issue (two) against the appellant. On the whole, having resolved the two issues in this appeal against the appellant, its fortune is not a second, guess. It is a non-starter as it is wanting in merit. Consequently, I dismiss the appellant’s appeal. I affirm the judgment of the lower court. I order that parties bear their respective costs of prosecuting and defending the doomed appeal.

IGNATIUS IGWE AGUBE, J.C.A: I have read in advance the lead Judgment just read by my learned brother O.F. Ogbuinya, JCA and I agree completely with my Lord that this Appeal is unmeritorious and should be dismissed.

“My Lord has exhaustively dealt with the salient issues that called for resolution in this appeal with utmost diligence and detail, leaving no room for any addition by me, I completely endorse and adopt his reasoning and conclusion as mine that the Appeal is dismissed and the Judgment of the lower Court affirmed. Parties shall bear their respective costs as has rightly been ordered by my Lord.

ITA G. MBABA, J.C.A: I have had the privilege of advance knowledge of the judgment just delivered by my learned brother OBANDE OGBUINYA J.C.A. having taken part in the hearing and conference thereof I agree with his reasoning and conclusions and also dismiss the appeal, affirming the judgment of the lower Court.

I abide by the consequential orders in the lead judgment.

Appearances
Mrs., Iwalola Bello (with her, Tosin Alawode, Esq,) For the Appelants
I.O. Salahudeen, Esq. (holding brief for Chief U. M. Enwere) For the Respondents

Share this: