IDUNG & ANOR v. C.O.P & ORS

CITATION: (2017) LPELR-42333(CA)

In the Court of AppealIn the Calabar Judicial Division

Holden at Calabar

ON WEDNESDAY, 8TH FEBRUARY, 2017Suit No: CA/C/71/2015

Before Their Lordships:

IBRAHIM MOHAMMED MUSA SAULAWA Justice, Court of AppealSTEPHEN JONAH ADAH Justice, Court of AppealJOSEPH OLUBUNMI KAYODE OYEWOLE Justice, Court of Appeal

Between1. CHIEF MAURICE UDO IDUNG2. SATURDAY MAURICE IDUNG - Appellant(s)

And1. THE COMMISSIONER OF POLICE(Withdrawn on 12th January, 2017)2. SUPOL ARIKPO OFFICER-IN-CHARGE,ANTI-KIDNAPPING DEPARTMENT,IKOT AKPAN ABIA, UYO(Withdrawn on 12th January, 2017)3. SGT. IMO IPOSTATE CRIMINAL INVESTIGATION DEPARTMENT,IKOT AKPAN ABIA, UYO(Withdrawn on 12th January, 2017)4. INVESTIGATING POLICE OFFICER, AGOGO ANTI-KIDNAPPING DEPARTMENT, IKOT AKPAN ABIA, UYO(Withdrawn on 12th January, 2017)

AND

ACCESS BANK PLCWELLINGTON BASSEY WAY, UYO-GARNISHEE RESPONDENT

- Respondent(s)

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RATIO DECIDENDI1. APPEAL - FRESH POINT(S) ON APPEAL: Whether leave of Court must first be

sought and obtained before fresh point can be raised on appeal and theexception(s) thereof"The law is settled now on the issue of raising new issues on appeal. Generally,an appeal is regarded as a continuation of the original suit rather than theinception of a new action. Because of this, in an appeal, parties are normallyconfined to their case as pleaded in the Court of first instance. They are notallowed to make a new and different case on appeal. They are not allowed toraise in such appeal new issues without the express leave of Court or to proffernew evidence without such leave. An appeal, being a judicial examination by ahigher Court of the decision of an inferior Court, it follows that such examinationshould normally and more appropriately be confined to the facts and issues thatcame before the inferior Court for decision.See Oputa JSC in the case of ADEGOKE MOTORS LTD. v. ADESANYA (1989)NWLR (pt. 109) 250. Issue of jurisdiction however has been consideredexceptional. See the cases of ELUGBE V. OWOKAFE (2004) 18 NWLR (pt. 905)319; and MOSES VS. STATE (2006) 11 NWLR (PT. 992) 458. It follows thereforethat leave of Court is a sine qua non to raising fresh issues on appeal where theissue raised is not an issue of jurisdiction. In the instant case, the issue ofwhether Exhibit AB2 attached to the affidavit to show cause conforms to Section84 of the Evidence Act is an issue affecting the competence of the documentand not an issue of jurisdiction that should be raised of the shelf without theleave of the Court. Fortunately for the Appellant, the issue of compliance withthe Evidence Act was raised before the trial Court and Sections 84 and 90 of theEvidence Act were placed before the trial Court." Per ADAH, J.C.A. (Pp. 15-17,Paras. E-A) - read in context

2. COURT - DUTY OF COURT: Duty of Court as it relates to affidavit evidence"A trial judge it is trite is a judge of facts and law. Where the judge assesses theaffidavit and discovers that the facts therein laden in the affidavit are the basicfacts and the judge relies on the facts he has taken from the affidavits, hisfindings cannot be said to be perverse."Per ADAH, J.C.A. (Pp. 14-15, Paras. E-A) -read in context

3. EVIDENCE - AFFIDAVIT EVIDENCE: Content of an affidavit"An affidavit by whatever configuration is not like a documentary Exhibit whichhas to be accepted by the Court based on the foundation laid. There is no magicin filing an affidavit. It has to be an affidavit of merit. See the cases of U.T.C.(NIG.) LTD. v. PAMOTEI (1989) 2 NWLR (PT. 103) 244, 292 and BAMAIYI vs.STATE (2001) 8 NWLR (pt. 715) 270 where Uwaifo JSC held:I think the legal position is clear, that in any affidavit used in the Court, the lawrequires, as provided in Section 86 and 87 of the Evidence Act, that it shallcontain only a statement of facts and circumstances derived from the personalknowledge of the deponent or from information which he believes to be true,and shall not contain extraneous matter by way of objection, or prayer, or legalargument or conclusion.(See Section 115 of the Evidence Act 2011). (Brackets supplied by me).The simple truth is that an affidavit contains facts or relevant issues needed toestablish a position."Per ADAH, J.C.A. (Pp. 13-14, Paras. F-E) - read in context

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4. EVIDENCE - CONTRADICTION IN EVIDENCE: Difference betweencontradictory evidence and discrepancy in the evidence of a witness and theeffect of same"In legal and ordinary sense the word "contradiction" is not meant to be used forevery misalignment or wrongful configuration of tenses nor was it to be used asa synonym for the word discrepancy. Contradiction is a word used purposely toconnote a combination of statements, ideas or features which are opposed oneto another. It is different from the word discrepancy which is a word defined tomean a difference between two things that should be the same. What wasfeatured in the brief of the Appellant is discrepancy and nothing more. I amcompletely in agreement with the position of the Respondent's counsel thatdiscrepancies do not derogate from the credibility of the evidence adduced. SeeAugie, JCA (as he then was) in the case of IKUEPENI KAN v. STATE (2011) 1NWLR (pt. 1229) 449." Per ADAH, J.C.A. (Pp. 21-22, Paras. E-C) - read in context

5. EVIDENCE - UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect ofunchallenged/uncontroverted depositions in an affidavit"It is well known in law that failure of a party to challenge or controvertdepositions in affidavit of his opponent by filing a counter-affidavit, reply orfurther and better affidavit is deemed to have accepted the facts deposed in theaffidavit. AYOOLA VS. BARUWA (1999) 11 NWLR (PT. 628) 595; COMPTROLLER,NIGERIA PRISON SERVICE V. ADEKANYE (1999) 10 NWLR (PT. 623) 400. When anaffidavit is unchallenged, the trial Court is at liberty to accept it as true andcorrect." Per ADAH, J.C.A. (Pp. 22-23, Paras. E-A) - read in context

6. EVIDENCE - DOCUMENTARY EVIDENCE: Requirements for admissibility of adocument which is a copy of an entry in a bankers book"... The foregoing is in tandem with the requirements of Section 84(2)(a)-(d) ofthe Evidence Act. Did the Judgment Creditor/Applicant counsel expect acertificate in the nature of a document to authenticate?These issues from the record were duly considered by the Lower Court. I havecarefully gone through the decision of the Lower Court on this issue and I am inaccord with the reasoning and conclusion of the Lower Court on this issue. Thelaw did not in any form place any burden on the Garnishee to call any specificstaff of the bank to give evidence. Section 90(1)(e) (iii) talks of an officer of thebank. The deponent to the affidavit to show cause derived his information froma staff of the Garnishee called Mr. Oladipo or Ladipo described as the LegalAdviser of the garnishee! There is clearly from the record before the trial Courtcompliance with the requirement of the law as held by the Lower Court. Thelearned trial judge was therefore not wrong when he accepted the Garnishee'saffidavit to show cause." Per ADAH, J.C.A. (Pp. 19-20, Paras. B-A) - read incontext

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7. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: The procedurefor granishee proceedings"I must state here at this point that the substance of this case is theenforcement of judgment of a Court through garnishee proceedings. Theprocess and procedure to follow are not in any sense hidden. They are clearlylaid out in Section 83 of the Sheriffs and Civil Process Act LFN 2004.Section 83 of the Act provides:1. The Court may, upon the ex parte application of any person who is entitled tothe benefit of a judgment for the recovery or payment of money, either beforeor after any oral examination of the debtor liable under such judgment and uponaffidavit by the applicant or his legal practitioner that judgment has beenrecovered and that it is still unsatisfied and to what amount, and that any otherperson is indebted to such debtor and is within the State, order that debts owingfrom such third person, hereinafter called the garnishee, to such debtor shall beattached to satisfy the judgment or order, together with the costs of thegarnishee proceedings and by the same or any subsequent order it may beordered that the garnishee shall appear before the Court to show cause why heshould not pay to the person who has obtained such judgment or order the debtdue from him to such debtor or so much thereof as may be sufficient to satisfythe judgment or order together with costs aforesaid.2. At least fourteen days before the day of hearing, a copy of the order nisi shallbe served upon the garnishee and on the judgment debtor.The modus of deploying this Garnishee process was captured by the SupremeCourt in the case of U.B.N. PLC v. BONEY MARCUS IND. LTD. (2005) 13 NWLR(PT. 943) 654 where the Court held as follows:Applications for garnishee proceedings are made to the Court by the judgmentcreditor and the orders of the Court usually come in two steps. The first is agarnishee order nisi. Nisi is a Norman-French word and it means "Unless". It is,therefore, an order made, at that stage, that the sum covered by the applicationbe paid into Court or to the judgment creditor within a stated time unless thereis some sufficient reason why the party on whom the order is directed is givenwhy the payment ordered should not be made. If no sufficient reasons appear,the garnishee order is then made absolute and that ends the matter in that theparty against whom the order absolute is made is liable to pay the amountspecified in the order to the judgment creditor. The Court thereafter becomesfunctus officio as far as that matter is concerned in that the Judge who decidedthe matter is precluded from again considering the matter even if new evidenceor arguments are presented to him.From the provision of the Sheriffs and Civil Process Act 2004, it is inherent in theprocedure that the garnishee so ordered as in the order nisi be served with theorder nisi and the Garnishee is expected to show cause why the order shouldnot be made absolute. Once the Garnishee shows cause and the trial Court issatisfied that the cause shown has sufficiently exculpated the Garnishee frompaying the judgment debt or the cause shown has distanced the Garnishee frompaying the debt the trial Court has no choice but to discharge the order nisi andterminate the Garnishee proceedings." Per ADAH, J.C.A. (Pp. 10-13, Paras. D-B) -read in context

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STEPHEN JONAH ADAH, J.C.A. (Delivering the

Leading Judgment): This is an appeal against the decision

of the High Court of Akwa Ibom State sitting at Uyo in Suit

No. HU/MISC.385/2013 delivered on 31st day of March,

2014.

The facts of this case are simple and straight-forward.

The Appellants as Applicants before the Lower Court

commenced garnishee proceedings as judgment creditors

to recover the sum of Seven hundred thousand Naira

(N700,000) only judgment debt along with Fifty Thousand

Naira (N50,000) cost for the garnishee proceedings. The

judgment was obtained by the Appellants/Judgment

c red i to r s aga ins t the 1s t , 2nd , 3 rd and 4 th

Respondents/Judgment Debtors. The 5th Respondent was

the Garnishee.

The matter was originated by the motion ex-parte filed

before the Lower Court by the Appellants in this appeal on

5th December, 2014. The reliefs on the face of the motion

papers are as follows:

1. An order Nisi garnishing the accounts of the Judgment

Debtors (i.e. the accounts maintain by the police being 1st

Respondents/Judgment Debtors Respondents with the

Garnishees, in respect of the Judgment sum in suit No.

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HU/307/2010).

2. An Order Nisi attaching the Judgment sum of

N700,000.00 (Seven Hundred Thousand Naira) only as

contained in "Exhibit 'A' attached to this motion paper,

standing to the credit of the account with Account Number

0059671734 (in the Garnishee's bank) including any other

account operated by the Judgment/Debtors in settlement of

the Judgment debt in Suit No. HU/307/2010, which said

sum is still outstanding and recoverable through the

Registry of this Court.

3. An Order directing the Garnishees to appear in this

Honourable Court to show cause why it should not pay to

the Judgment/Creditors/Applicants.

4. An Order of Court to the sum of N50,000.00 (Fifty

Thousand Naira) only being the cost of Garnishee

proceeding.

5. For such further Order or Orders as this Honourable

Court may consider just and appropriate to make in the

circumstance.

The Lower Court considered the motion ex-parte and

granted the application. An order nisi was issued by the

Lower Court on the 16th day of December, 2013.

The Garnishee filed an affidavit to show cause indicating

that the Garnisheed Account does not belong to the

Judgment Debtors.

The

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learned trial judge considered the affidavit and discharged

the Order Nisi earlier issued and dismissed the application.

Not satisfied with the decision of the Lower Court the

Appellants now appealed to this Court vide their notice of

appeal filed on 2nd May, 2014.

The Record of Appeal was compiled and transmitted to this

Court on 8th May, 2015 but deemed on 22nd October,

2015. The Appellant's brief of argument was filed on 8th

May, 2015 but deemed on 22nd October, 2015. The 5th

Respondent's brief was filed on 9th November, 2015 while

the Appellants filed their reply brief on 23rd November,

2015.

At the oral hearing of this appeal on 12th day of January,

2017 the learned counsel for the applicants Ernest Usah

Esq. with the leave of this Court withdrew the appeal

against the 1st, 2nd, 3rd and 4th Respondents and the

appeal was accordingly dismissed against those four

Respondents. The appeal then was only maintained against

the 5th Respondent.

The 5th Respondent being the only Respondent standing in

this appeal will now be referred to as the Respondent in

this judgment.

The learned counsel for the Appellants adopted his brief of

argument

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and the reply brief. He urged this Court to allow the

appeal.

The learned counsel for the Respondent Mr. Bassey B.

Anwanane adopted the brief of the Respondent and urged

the Court to dismiss this appeal.

The Appellants in their brief identified and argued three

issues. These three issues are as follows:

ISSUE ONE

Whether the trial Court was not wrong when he accepted

the garnishee's affidavit to show cause which did not

comply with the condition precedence in Sections 89(h) and

90(1)e of the Evidence Act 2011 on how entries in banker's

book should be proved?

ISSUE TWO

On whether a counter affidavit is necessary, where an

affidavit is contradictory self-conflicting, or worthless in

law?

ISSUE THREE

Whether it is necessary in law to comply with Section 84 of

the Evidence Act 2011 as a whole in accepting computer

generated evidence.

The Respondent in her own brief of argument framed three

issues viz:

1. Whether the trial Court was right when it relied on the

Garnishee/5th Respondent's Affidavit to Show Cause and

when it held that the said Affidavit had substantially

complied with the conditions precedent for

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admissibility of the statement of account tendered by the

Garnishee/5th Respondent, and consequently relief on the

said statement of account. (Formulated from Ground 1 of

the Appellants' Notice of Appeal).

2. Whether the trial Court was right in treating the facts

stated in the Garnishee/5th Respondent's Affidavit to Show

Cause as uncontroverted, and thus admitted, having regard

to the fact that the Appellants did not counter or controvert

the said Affidavit, and whether that point can indeed be

raised in this Court for the first time, and raised without

leave. (Formulated from Ground 2 of the Appellants' Notice

of Appeal).

3. Whether the trial Court acted judicially, judiciously, and

in the interest of justice when it relied on the Garnishee's

uncontroverted Affidavit to Show Cause, including Exhibit

AB2 exhibited thereto, in refusing the application for a

garnishee absolute and in discharging the garnishee nisi.

(Formulated from Ground 3 of the Appellants' Notice of

Appeal).

From the brief of the parties, all the issues generated are

not only at par they are the same issues being rehearsed in

different words by the parties. The issues

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identified therefore are three in aggregate and I would like

to address them now using the account of the Appellants as

a guide.

ISSUE ONE

This issue deals with the acceptance of the affidavit of the

Respondent to show cause by the Lower Court.

The learned counsel for the Appellants in his argument on

this issue canvassed that the acceptance of the affidavit to

show cause was not in consonance with the law or that

there was no proper foundation laid by the Garnishee for

the reception of the said affidavit. He relied on Sections

89(h), and 90(1)(e)(iii) or (iv) of the Evidence Act 2011 and

the case of ARDO vs. NYAKO and ORS. (2014) Vol. 237

LRCN 126, 135. He tried to differentiate between a

general statutory provision and a specific statutory

provision of the law. He canvassed that where a statute

provides a particular mode of performing a duty regulated

by statute, the mode prescribed, and no other, must have to

be adopted. He referred to ABUBAKAR v. YAR'ADUA

(2009) VOL. 5 W.R.N. PAGE 1 AT 23 HELD 2.

Learned counsel argued also that even though word for

word compliance with Section 90 (1)(e) of the Evidence Act

2011 is not compulsory, but

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substantial compliance is needed before admissibility of the

said affidavit to show cause should have been accepted, but

that this was not the case. The law he submitted needs the

condition precedence to be complied with. That an affidavit

showing the statement of account must come from an

officer of the bank, but the affidavit of the garnishee was

deposed to by one Imeobong Okon, a litigation secretary

with the Zenith law firm (refer to page 17 of the record)

and that this clearly contradicts Section 90 (1)(e) of the

Evidence Act 2011.

The learned counsel opined that the phrase "which proof

may be given orally or by affidavit by an officer of the bank"

in Section 90(1)(e)(iii) means that no other person, apart

from an officer of the bank will be competent to offer such

proof. He relied on the Textbook titled Law of Evidence in

Nigeria, by S. T. Hon (SAN) Vol. II 2nd Edition page

953. That the statute in Sections 89(h) and 90(1)(e) are

very clear and unambiguous, the trial Court ought to have

given effect to it, so as to speak the intention of the

legislature. He contended that Section 84 of the Evidence

Act 2011 never excluded Section 89(h) and 90(1)(e) at

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all. That there would be no need for the legislator to enact

Sections 89(h) and 90(1)(e) into the current statute books

in Nigeria if it was so. He urged the Court to resolve the

issue in favour of the Appellants.

The Respondent in her own argument on this issue

punctured the argument of the Appellants on the

acceptance of the affidavit to show cause and the

admissibility of Exhibit AB2, the Statement of Account

annexed to it affidavit as Exhibit.

The learned counsel for the Respondent pointed out that

the Order Nisi and the Sheriff and Civil Process Act 2004

did not specify the mode of appearance to show cause. He

contended therefore that the Garnishee being a limited

liability company and a bank, and garnishee proceedings

being normally fought on affidavit evidence, the usual and

proper course of legal business is for the Garnishee to

appear by Counsel, and to show cause by affidavit. That,

contrary to the Appellants' assumption, there is no rule of

law or practice that the affidavit to show cause must be

sworn to by a staff of the bank or any particular person.

That neither Section 84, nor Section 89, nor Section 90 of

the Evidence Act 2011

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variously cited by the Appellants, nor the Sheriff and Civil

Processes Act, suggests any such stipulation or limitation.

That Section 84 of the Evidence Act is concerned with

admissibility of statements in a document produced by a

computer, not with deponents to an affidavit. That Sections

89 and 90 of the Evidence Act are concerned with cases in

which secondary evidence relating to documents may be

tendered, and the nature of such evidence, the provision

therein most pertinent to the present matter being Section

89(h) which permits secondary evidence to "be given of the

existence, condition or contents of a document when ...the

document is an entry in a banker's book".

The learned counsel for the Respondent further pointed out

that the issue of non conformity of Exhibit AB2 with Section

84 of the Evidence Act was not raised at the Lower Court

the issue is a new issue and can only be raised before this

Court with the leave of the Court. He relied on the cases of

IKEDIGWE v. WONG YUI FAI (2012) 10 NWLR (PT.

1308) 375, 395-396 (C-6); AND GARUBA V.

OMOKHODION (2011) 14 NWLR (PT. 1269) 745, 778

(B-F). He urged the Court to discountenance those new

issues

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raised without leave of Court.

On the merit of the Appellant's submission, learned counsel

for the Respondent faulted the interpretation of the

Appellants' counsel in respect of Section 90 (1)(e) of the

Evidence Act. He canvassed that the Legal Adviser to the

Respondent Bank clearly qualifies as an officer of the Bank.

Counsel noted that Exhibit AB2 was duly certified.

He therefore urged the Court to hold that the trial Court

was right to have relied on the affidavit to show cause. He

urged the Court to resolve this issue one in favour of the

Respondent and against the Appellants.

I must state here at this point that the substance of this

case is the enforcement of judgment of a Court through

garnishee proceedings. The process and procedure to

follow are not in any sense hidden. They are clearly laid out

in Section 83 of the Sheriffs and Civil Process Act LFN

2004.

Section 83 of the Act provides:

1. The Court may, upon the ex parte application of any

person who is entitled to the benefit of a judgment for the

recovery or payment of money, either before or after any

oral examination of the debtor liable under such judgment

and upon

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affidavit by the applicant or his legal practitioner that

judgment has been recovered and that it is still unsatisfied

and to what amount, and that any other person is indebted

to such debtor and is within the State, order that debts

owing from such third person, hereinafter called the

garnishee, to such debtor shall be attached to satisfy the

judgment or order, together with the costs of the garnishee

proceedings and by the same or any subsequent order it

may be ordered that the garnishee shall appear before the

Court to show cause why he should not pay to the person

who has obtained such judgment or order the debt due

from him to such debtor or so much thereof as may be

sufficient to satisfy the judgment or order together with

costs aforesaid.

2. At least fourteen days before the day of hearing, a copy

of the order nisi shall be served upon the garnishee and on

the judgment debtor.

The modus of deploying this Garnishee process was

captured by the Supreme Court in the case of U.B.N. PLC

v. BONEY MARCUS IND. LTD. (2005) 13 NWLR (PT.

943) 654 where the Court held as follows:

Applications for garnishee proceedings are made to the

Court by the

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judgment creditor and the orders of the Court usually come

in two steps. The first is a garnishee order nisi. Nisi is a

Norman-French word and it means "Unless". It is,

therefore, an order made, at that stage, that the sum

covered by the application be paid into Court or to the

judgment creditor within a stated time unless there is some

sufficient reason why the party on whom the order is

directed is given why the payment ordered should not be

made. If no sufficient reasons appear, the garnishee order

is then made absolute and that ends the matter in that the

party against whom the order absolute is made is liable to

pay the amount specified in the order to the judgment

creditor. The Court thereafter becomes functus officio as

far as that matter is concerned in that the Judge who

decided the matter is precluded from again considering the

matter even if new evidence or arguments are presented to

him.

From the provision of the Sheriffs and Civil Process Act

2004, it is inherent in the procedure that the garnishee so

ordered as in the order nisi be served with the order nisi

and the Garnishee is expected to show cause why the order

should not be made

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absolute. Once the Garnishee shows cause and the trial

Court is satisfied that the cause shown has sufficiently

exculpated the Garnishee from paying the judgment debt or

the cause shown has distanced the Garnishee from paying

the debt the trial Court has no choice but to discharge the

order nisi and terminate the Garnishee proceedings.

The parties in the instant appeal with all due respect have

deviated from the substance of this appeal to engage

themselves in unnecessary seductive arguments over the

simple issue of whether the Garnishee has shown cause

why the order nisi should not be made absolute. The

attention given to the issue of compliance or conformity of

the affidavit to show cause with Sections 89 (h) and

90(1)(e) of the Evidence Act is more crucial in the

wonderland of technicalities than in the real world of

substance. From the couching of the Appellant's issue one,

the impression conveyed is in the profile of the affidavit to

show cause. An affidavit by whatever configuration is not

like a documentary Exhibit which has to be accepted by the

Court based on the foundation laid. There is no magic in

filing an affidavit. It has to be an affidavit

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of merit. See the cases of U.T.C. (NIG.) LTD. v.

PAMOTEI (1989) 2 NWLR (PT. 103) 244, 292 and

BAMAIYI vs. STATE (2001) 8 NWLR (pt. 715) 270

where Uwaifo JSC held:

I think the legal position is clear, that in any affidavit used

in the Court, the law requires, as provided in Section 86

and 87 of the Evidence Act, that it shall contain only a

statement of facts and circumstances derived from the

personal knowledge of the deponent or from information

which he believes to be true, and shall not contain

extraneous matter by way of objection, or prayer, or legal

argument or conclusion.

(See Section 115 of the Evidence Act 2011). (Brackets

supplied by me).

The simple truth is that an affidavit contains facts or

relevant issues needed to establish a position. In the instant

case, the affidavit contained facts to show that the Bank

Account sought to be attached does not belong to the

judgment debtors. A trial judge it is trite is a judge of facts

and law. Where the judge assesses the affidavit and

discovers that the facts therein laden in the affidavit are

the basic facts and the judge relies on the facts he has

taken from the affidavits, his findings

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cannot be said to be perverse. Undoubtedly, this Court as

an intermediate appellate Court shall without hesitation act

on the facts in the said affidavits.

The learned counsel for the Respondent in this brief of

argument of the Respondent prefaced his argument with

the fact that the issues of compliance with Section 84 of the

Evidence Act as relates to the annexed Exhibit AB2 was not

raised before the Lower Court. The Respondent's counsel

therefore called in this Court to discountenance the

argument over non-conformity of Exhibit AB2 with Section

84 of the Evidence Act. The learned counsel for the

Appellant in his reply brief contended that the issue was

that of jurisdiction and can be raised at anytime. He cited

the case of BUHARI VS. INEC (2009) 7 WRN 151.

The law is settled now on the issue of raising new issues on

appeal. Generally, an appeal is regarded as a continuation

of the original suit rather than the inception of a new

action. Because of this, in an appeal, parties are normally

confined to their case as pleaded in the Court of first

instance. They are not allowed to make a new and different

case on appeal. They are not allowed to raise in

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such appeal new issues without the express leave of Court

or to proffer new evidence without such leave. An appeal,

being a judicial examination by a higher Court of the

decision of an inferior Court, it follows that such

examination should normally and more appropriately be

confined to the facts and issues that came before the

inferior Court for decision.

See Oputa JSC in the case of ADEGOKE MOTORS LTD. v.

ADESANYA (1989) NWLR (pt. 109) 250. Issue of

jurisdiction however has been considered exceptional. See

the cases of ELUGBE V. OWOKAFE (2004) 18 NWLR

(pt. 905) 319; and MOSES VS. STATE (2006) 11

NWLR (PT. 992) 458. It follows therefore that leave of

Court is a sine qua non to raising fresh issues on appeal

where the issue raised is not an issue of jurisdiction. In the

instant case, the issue of whether Exhibit AB2 attached to

the affidavit to show cause conforms to Section 84 of the

Evidence Act is an issue affecting the competence of the

document and not an issue of jurisdiction that should be

raised of the shelf without the leave of the Court.

Fortunately for the Appellant, the issue of compliance with

the Evidence Act was raised before the trial Court

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and Sections 84 and 90 of the Evidence Act were placed

before the trial Court.

I hold therefore that the issue of it being a fresh issue

therefore does not arise in this case. The issue as raised is

therefore validly raised before this Court for consideration

and I would like to step into it for consideration.

The issue raised by the Appellant in issue one is perching

on this non-conformity or compliance with Sections 89(h)

and 90 (1)(e) of the Evidence Act. From the record the

issues raised by the Appellant at the Lower Court were

captured at pages 27 and 28 of thereof.

At page 27 of the record of appeal, the learned trial judge

stated as follows:

I now turn to the submission of the counsel to the judgment

creditor that the content of the affidavit to show cause

being entries from banker's book can only be legally placed

before the Court by a staff of the Garnishee. Learned

counsel claimed to rely on Section 90(1) of the Evident Act.

With respect to the learned counsel, that submission is not

totally correct in a case contested solely by affidavit

evidence; the provisions relating to affidavit must be read

in conjunction with

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other provisions in respect of any specific subject. Any

information in an affidavit is competent and unassailable if

the source of the information is stated. In other words, a

banker can communicate information in relation to entries

to any deponent who acknowledges the source of that

information for use in any proceeding where the fact in

question is material.

Then at page 28, the next issue relating to the affidavit to

show cause raised by the learned counsel for the Appellant

was captured by the learned trial judge as follows:

Learned counsel also raised the issue of certificate of

authenticity required to accompany all computer generated

documents pursuant to Section 84(2) of the Evidence Act.

He contends that there was none in this case.

The posit ion taken by learned counsel for the

Judgment/Creditor/Applicant is wrong. I refer him to

Paragraph 3 of the Garnishee affidavit to show cause. It

opens thus:

"The aforesaid legal adviser, Mr. Oladipo, has informed me

and certified and I verily believe him, that the statement of

account Exhibit AB2 is derived from the customer’s

database with the bank. The said account and statement

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therefrom form part of the continuous record maintained

by the bank in its computer system for all its customers and

was regularly used by the bank to store and process

information and date over the period it covers.... The

computer system is generated normally during all relevant

items..."

The foregoing is in tandem with the requirements of

Section 84(2)(a)-(d) of the Evidence Act. Did the Judgment

Creditor/Applicant counsel expect a certificate in the

nature of a document to authenticate?

These issues from the record were duly considered by the

Lower Court. I have carefully gone through the decision of

the Lower Court on this issue and I am in accord with the

reasoning and conclusion of the Lower Court on this issue.

The law did not in any form place any burden on the

Garnishee to call any specific staff of the bank to give

evidence. Section 90(1)(e) (iii) talks of an officer of the

bank. The deponent to the affidavit to show cause derived

his information from a staff of the Garnishee called Mr.

Oladipo or Ladipo described as the Legal Adviser of the

garnishee! There is clearly from the record before the trial

Court compliance with the

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requirement of the law as held by the Lower Court. The

learned trial judge was therefore not wrong when he

accepted the Garnishee's affidavit to show cause. Issue one

from this conclusion is therefore resolved in favour of the

Respondent.

ISSUE TWO

This issue is on whether a counter affidavit was necessary

where an affidavit is contradictory, self-conflicting or

worthless in law.

The Appellant on this issue accepted the basic norm of our

law that non-countering of the Affidavit is deemed to mean

that the party refusing to counter has admitted all the

facts.

Counsel for the Appellant however contended that there

are some exemptions to the rule. These exemptions he

itemized to include the following:

i. When the exhibit attached to the opponent’s affidavit

destroys the facts contained in said affidavit, there would

be no need to counter such affidavit. Refer BALOGUN v.

SHONIBANE (1997) 3 NWLR (PT. 493).

ii. When an affidavit states false or falsehood, OKOYE V.

CPMB LTD. All FWLR 2008 (PT. 441) 870 to 834 SC.

iii. Where an affidavit contains conclusion or legal

argument there is no need to counter such affidavit. Refer

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BUHARI v. INEC (2009) 7 2RN P. 151.

iv. When there are contradictions or self-inflicted

contradiction, or mixed contradiction associated with a

particular party's affidavit, there would be no need to

counter such affidavit. Refer R.E.A.N. LTD. V. ASWANI

TEXTILES LTD. (1992) 2 SCNJ (PT. 11) 346.

The learned counsel for the Appellant then pointed out in

his submissions that there were contradictions. He indexed

the deposition touching on whether it was Mr. Oladipo or

Mr. Ladipo was the Legal Adviser of the Garnishee. The

next he said is whether the Bank Account Holder is "Akwa

Ibom State Security Operation Account" or "AKS com. Sec.

Operation".

The learned counsel for the Respondent in response

contested vehemently that what could be seen in the

affidavit is not contradiction but discrepancy.

The main thrust of this issue two is whether there were

contradictions. In legal and ordinary sense the word

"contradiction" is not meant to be used for every

misalignment or wrongful configuration of tenses nor was it

to be used as a synonym for the word discrepancy.

Contradiction is a word used purposely to connote a

combination of statements, ideas or

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features which are opposed one to another. It is different

from the word discrepancy which is a word defined to mean

a difference between two things that should be the same.

What was featured in the brief of the Appellant is

discrepancy and nothing more. I am completely in

agreement with the position of the Respondent's counsel

that discrepancies do not derogate from the credibility of

the evidence adduced. See Augie, JCA (as he then was) in

the case of IKUEPENI KAN v. STATE (2011) 1 NWLR

(pt. 1229) 449. I am therefore of the firm view that there

is no contradiction in cause shown in the affidavit of the

Respondent. The Appellant knew the effect of not

responding to an affidavit evidence.

The Appellant, it is on record, filed Reply Affidavit but

withdrew it. He took a gamble and there was nothing left

standing in the way of controverting the facts deposed to

by the Respondent. It is well known in law that failure of a

party to challenge or controvert depositions in affidavit of

his opponent by filing a counter-affidavit, reply or further

and better affidavit is deemed to have accepted the facts

deposed in the affidavit. AYOOLA VS. BARUWA (1999)

11 NWLR

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(PT. 628) 595; COMPTROLLER, NIGERIA PRISON

SERVICE V. ADEKANYE (1999) 10 NWLR (PT. 623)

400. When an affidavit is unchallenged, the trial Court is at

liberty to accept it as true and correct. This was exactly

what the trial Court did in this case.

From the foregoing, it is obvious that issue two must be

resolved in favour of the Respondent and against the

Appellants. I accordingly resolve issue two in favour of the

Respondents.

ISSUE THREE

This issue is whether there was compliance with the

Evidence Act in accepting Exhibit AB2 and whether the

Court acted judicially and judiciously in refusing the

application for garnishee order absolute.

The Appellants in the Appellants' brief contended that

Section 84(4) (b) of the Evidence Act 2011 was not

complied with. This Section 84(4) of the Evidence Act is

very clear. It reads:

In any proceeding where it is desired to give a statement in

evidence by virtue of this section, a certificate:-

a. Identifying the document containing the statement and

describing the manner in which it was produced;

b. Giving such particulars of any device involved in the

production of that document as

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may be appropriate for the purpose of showing that the

document was produced by a computer;

c. Dealing with any of the matters to which the conditions

mentioned in Sub-section (2) above related, and purporting

to be signed by a person occupying a responsible position

in relation to the operation of the relevant device or the

management of the relevant activities, as the case may be,

shall be evidence of the matter stated in the certificate; and

for the purpose of this subsection, it shall be sufficient for a

matter to be stated to the best of the knowledge and belief

of the persons stating it.

The learned trial judge in his decision referred to

Paragraph 3 of the affidavit to show cause. The affidavit is

at page 17 to 68 of the record of Appeal. Paragraph 3 of the

affidavit states:

The aforesaid Legal Adviser, Mr. Oladipo, had informed me

and certified, and I verily believe him that the statement of

account, Exhibit AB2, is derived from the customers'

database with the Bank. The said account and the

statement therefrom form part of a continuous record

maintained by the Bank in its computer system for all its

customers, and was regularly used by

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the Bank to store and process information and data over

the period it covers, that all information supplied to the

computer system were so done in the ordinary course of

business, that the computer system operated normally

during all relevant times, and that the statement, Exhibit

AB2 reproduces and is derived from information supplied to

the computer system in the ordinary course of the Bank’s

activities.

The deposition of the deponent here has not been

controverted. Exhibit AB2 is copied at page 22 of the

Record of Appeal. It bears a certificate of one Ugwu C.

Emeka, Compliance Officer of Access Bank PLC

(Respondent) and it is dated and signed. I do not think

there is still any requirement of law to be satisfied under

the Evidence Act that is still wanting from the evidence

before the Lower Court. The Appellant therefore, has not

been able to justify his allegation of non-compliance in this

appeal. Issue three is accordingly resolved in favour of the

Respondent and against the Appellants.

From the foregoing consideration, therefore, I come to the

conclusion that this appeal is lacking in merit. The appeal

is therefore dismissed.

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The decision of the High Court of Akwa Ibom State in Suit

No. HA/120/2013 is hereby affirmed. The parties are to

bear their respective costs.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My

learned brother, the Hon. Justice S. J. Adah, JCA, has

served upon me a draft of the judgment just delivered by

him. I concur with the reasoning and conclusion reached

therein to the effect that the present appeal lacks merits. I

too hereby dismiss the appeal for lacking in merits and

abide by the consequential orders in the said judgment.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I had

the privilege to read the draft of the lead judgment just

delivered herein by my learned brother STEPHEN JONAH

ADAH, JCA and I totally endorse the reasoning and

conclusions therein. I find no basis to disturb the findings

and conclusions of the learned trial Judge in respect of the

Garnishee proceedings. The appeal lacks merit and I

equally dismiss it.

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