(2016) LPELR-40327(CA) 37lawpavilionpersonal.com/ipad/books/40327.pdf2 BANKING LAW - BANKER-CUSTOMER...
Transcript of (2016) LPELR-40327(CA) 37lawpavilionpersonal.com/ipad/books/40327.pdf2 BANKING LAW - BANKER-CUSTOMER...
ZENITH BANK PLC v. OMENAKA & ANOR
CITATION: (2016) LPELR-40327(CA)
In the Court of AppealIn the Yola Judicial Division
Holden at Yola
ON MONDAY, 14TH MARCH, 2016Suit No: CA/YL/108/2015
Before Their Lordships:
TIJJANI ABDULLAHI Justice, Court of AppealJUMMAI HANNATU SANKEY Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of Appeal
BetweenZENITH BANK PLC - Appellant(s)
And1. CHIEF GODWIN OMENAKA2. ADAMAWA STATE GOVERNMENT - Respondent(s)
RATIO DECIDENDI
1 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Nature of garnishee proceedings"A Garnishee proceedings is one by which a judgmentcreditor originates a third party proceedings against aperson indebted to the judgment debtor to pay overdirectly to the judgment creditor such money as aredue to the judgment debtor."Per GEORGEWILL, J.C.A.(P. 23, Paras. E-F) - read in context
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2 B A N K I N G L A W - B A N K E R - C U S T O M E RRELATIONSHIP: Nature of a banker/customerrelationship"In law, by the banker/customer relationship, themoney of a customer is in contract and money in thehands of the bank is borrowed from the customer. Assuch, until it has been demanded for by the customerit remains in the custody and control of the bank foruse. The relationship in law between a banker and itscustomer is therefore, that of Debtor and Creditor. SeeYesufu v. African Continental Bank Ltd. (1981) 1 SC 74,where Bello JSC., (as then was later CJN) had @ p. 95explained these principles of banking law and practicethus:"Where a banker credits the current account of itscustomer with a certain sum, the banker becomes adebtor to the customer in that sum; Joachimson v.Swiss Bank Corporation (1921) 3 KB 110. Andconversely when a bank debits the current accounts ofits customer with a certain sum, the customerbecomes a debtor to the bank in that sum; See PagetLaw of banking. 8th Edition 9.84"See also First Bank of Nigeria Ltd & Anor v. MobaFarms Ltd & Ors (2005) 8 NWLR (Pt. 928) 515; FirstInland Bank Plc v. Glory E. Effoing (2010) 16 NWLR (Pt.1218) 199 @ p. 206; Augustine Chigozie Uba v. UnionBank of Nigeria Plc (1995) 7 NWLR (Pt. 405) 72 @ p.72."Per GEORGEWILL, J.C.A. (Pp. 23-24, Paras. F-E) -read in context
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3 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Circumstance where the onus on agarnishee would be discharged"A Garnishee proceeding is thus a procedure legallyapproved by law for enforcing a money judgment bythe seizure or attachment of the debt due and accruingto the judgment debtor which forms part of his moneyin the hands of a third party for attachment. Thereforein law, the onus placed on a Garnishee would only bedischarged where it successfully establishes that theaccount or accounts covered by the Garnishee Ordernisi do not exist in its system or if exist, it is in debtand not in credit or that it has a right of set off or lienwhich are due effective against the customer. See UBNPlc. v. Boney Marcus Industries Ltd. (2005) All FWLR(Pt. 278) 1037 @ pp. 1046-1047. See also Fidelity BankPlc. v. Okwuowulu (2012) LPELR-8497(CA); CitizensInternational Bank v. SCOA (Nig) Ltd. (2006) 18 NWLR(Pt. 1011) 334.In law, it is now well settled beyond any dispute that aGarnishee is entitled to the defense of lien or set off asrightly recognized even by the Court below. A lien is alegal right reserved in a person to retain another'sproperty which is rightly and continuously in hispossession until present and accrued claims of theperson in possession are satisfied. See Afrotec Tech.Serv. (Nig) Ltd. v. Mia & Sons Ltd (2000) 15 NWLR (Pt.692) 739; OAU v. Olanihun (1996) 8 NWLR (Pt. 464)123."Per GEORGEWILL, J.C.A. (Pp. 24-26, Paras. F-A) -read in context
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4 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Distinction between right of lien andright of set off in garnishee proceedings"Now, in law while right of set off may not accrueunless and until the debt had matured for paymentand thus money standing to the credit of a judgmentdebtor would be available to satisfy a judgmentcreditor, the right of lien is not dependent on thematurity of the debt for repayment and thus can beexercised by the bank even before the loan or debt ofthe customer becomes due to protect itself fromsuffering unforeseeable losses should thecircumstances warrant it. See First Inland Bank Plc v.Glory Effiong (supra). In Fidelity Bank Plc v. FrancisOkwuowulu (supra),In Fidelity Bank Plc V. Francis Okwuowulu (supra)thisCourt per Ogunwumiju, JCA had stated thus:"The authorities are of the view that a garnishee isentitled to set-off any debt to him from the judgmentdebtor at the date when the order nisi was servedupon him and the garnishee is equally entitled to acounter claim against? judgment debtor, at any ratewhere it arises out of the same transaction of the debtsought to be attached. See Tapp v. Jones (1974) LR 10QB 591 @ P. 593. See also: Hale v. Victoria PlumbingCo. Ltd (1966) 2 QB 746."Per GEORGEWILL, J.C.A. (Pp.26-27, Paras. B-A) - read in context
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5 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Position of the law as regardsgarnishee proceedings"In considering the question whether or not theAppellant made out or showed cause why theGarnishee Order Nisi ought not to have been madeabsolute by the Court below, I think and deem itapposite to consider the relevant provisions of the lawgoverning Garnishee proceedings and the onus placedon a Garnishee ordered to show cause by a Court. Therelevant legislation is Section 83 of the Sheriffs andCivil Process Act; which succinctly provides thus:"The Court may, upon the ex-parte application of anyperson who is entitled to the benefit of a judgment forthe recovery or payment of money, either before orafter any oral examination of the debtor liable undersuch judgment and upon affidavit by the applicant ofhis legal practitioners that judgment has beenrecovered and that it is still unsatisfied to what amountand that any other person is indebted to such debtorand is within the State, orderhereinafter called the garnishee, to such debtor shallbe attached to satisfy the judgment or order, togetherwith costs of the Garnishee proceedings and by thesame or any subsequent order it may be ordered thatthe garnishee shall appear before the Court to showcause why he should not pay to the person who haveobtained such judgment or order the debt due to fromhim to such debtor or so much thereof as may besufficient to satisfy the judgment or order togetherwith the costs aforesaid."Per GEORGEWILL, J.C.A. (Pp.27-28, Paras. B-C) - read in context
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6 BANKING LAW - CONSOLIDATION OF ACCOUNT:Whether bank can merge different accounts kept by acustomer"In the circumstances in which it is of common groundb e t w e e n t h e p a r t i e s t h a t t h e 2 n dRespondent/Judgment Debtors operates severalaccounts with the Appellant, it is important to bear it inmind that in law unless an account is a trust account,any two or more accounts opened in the name of thesame person can be combined or merged togetherunless there is an agreement to the contrary. See FirstInland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218)99.A banker such as the Appellant is thus in law entitledto combine the several accounts of the 2ndRespondent for the purposes of determining theamount standing either to the credit or debit of thecustomer. See Halsbury's Laws of England Vol. 2, 3rdEdition paragraph 32 at page 172 stated the legalposition thus:"Unless precluded by agreement, express or impliedfrom the course of business, the banker is entitled tocombine different accounts kept by the Customer inhis own rights even though at different branches of thesame bank, and to treat the balance, if any as theamounts real ly standing to his credit ."PerGEORGEWILL, J.C.A. (Pp. 28-29, Paras. C-B) - read incontext
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7 ACTION - DENIAL OF ALLEGATION: How specificallegation of fact in an affidavit must be denied"The law is well settled that specific allegation of factscontained in an affidavit must be specifically denied asgeneral or bare or banal traverse or denial leaves suchallegations of facts as deemed admitted and thusrequiring no further proof.This was what the 1stRespondent simply did through his counsel when theydeposed on his behalf that "I know as a fact that thedepositions contained in paragraphs 5, 6, 7, 8, 9, 10and 11 are not true." In law such general denialamounts to nothing! See Raphael Nwakwo v. JaphetOfomata (2009) 11 NWLR (Pt. 1153) 496, where thisCourt per Sanusi, J.C.A. (as he then was now JSC)stated emphatically thus:"The law is trite and well settled too, that where aparty denies a deposition in an affidavit or pleadings,he must depose to facts which he wants the Court toaccept and not just make a general or sweeping deniallike that as in the instant case."See Thanni v. Saibu (1977) 2 SC 123; Ogunsola v.Usman (2002) 14 NWLR (Pt. 788) 636;Chief Biodun Olujinmi v. Ekiti State House of Assembly& Anor (2009) 11 NWLR (Pt. 1153) 464."PerGEORGEWILL, J.C.A. (Pp. 31-32, Paras. C-B) - read incontext
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8 BANKING LAW - CONSOLIDATION OF ACCOUNT:Whether bank can merge different accounts kept by acustomer"The answer to these divergent contention is onesimply well settled in law and can be found by theprofound statement on the law by this Court in FirstInland Bank Plc. v. Effiong (supra) @ p. 207, this Courtper Aka'ahs JCA (as he then was now JSC.,) had put thisissue in its proper perspective thus:"In the affidavit to show cause why it should not paythe judgment debtor, the Appellant annexed ExhibitsCA1 and CA2 to show that the judgment debtor did nothave any credit balance in appellant bank. Instead itwas owing the bank because of the loans the bank hasadvanced to the judgment debtor. The Court waswrong to conclude that since the loans were secured,the Appellant could not claim a lien over the creditbalance in the judgment debtor's account. As thejudgment debtor owed more than the amount standingto its credit, it was a debtor to the bank and there isnothing to show that the current account the judgmentdebtor maintained with the banks was held in trust foranother person, and so could not be merged with theloan account. Furthermore, there is no argument orfinding that the various loans granted to the judgmentdebtor had been liquidated which left the judgmentdebtor with a credit balance that could be attacheda n d g a r n i s h e d b y t h e j u d g m e n tcreditor/Respondent."Per GEORGEWILL, J.C.A. (Pp.34-35, Paras. D-D) - read in context
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9 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Status of a judgment debtor ingarnishee proceedings"My lords, the 2nd Respondent/Judgment Debtor hadnot filed any brief and had also not urged anything atthe hearing of this appeal and that is understandablyso as in law he is but a mere passive or nominal partyin a Garnishee proceeding, which is strictly betweenthe Ganishor/Judgment Creditor and the Garnishee.See Wema Bank v. Brasterm Sterr Nig Ltd. (2012) AllFWLR (Pt. 624) 107 @ pp. 111-112."Per GEORGEWILL,J.C.A. (P. 38, Paras. C-E) - read in context
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BIODELE ABRAHAM GEORGEWILL, J.C.A. (Delivering
the Leading Judgment): This is an appeal against the
decision contained in the ruling of the High Court of
Adamawa State in Suit NO: ADSY/1/2014: Chief Godwin
Omenaka v. Adamawa State Government & Anor., delivered
on 14/10/2015 by Ambrose D. Mammadi J., in which the
Order Nisi made against the Appellant as Garnishee was
made absolute in satisfaction of a judgment awarded in
favor of the 1st Respondent on 10/5/2012 in Suit No:
ADSY/83/2007: Chief Godwin Omenaka v. Yola North
Local Government Council & 4 Ors to the tune of
N101,079,000.00.
The 1st Respondent who was the judgment creditor had by
a Motion Exparte filed on 9/1/2014 sought and obtained the
Oder of the Court below granting a Garnishee Decree Nisi
against the Appellant and the Appellant was ordered to
show cause. The Appellant upon service of the Garnishee
Order Nisi on it, filed an affidavit to show cause why the
Garnishee Order should not be made absolute. The 1st
Respondent joined issue with the Appellant and after
hearing the parties, the Court below held that the Appellant
had failed to show cause why the Garnishee Order Nisi
should not be made
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absolute and proceeded to make the Garnishee Order
absolute against the Appellant. See pages 3-6; 33-47;
48-49; 72-83 and 84-100 of the Record of Appeal.
The Appellant was dissatisfied with the said ruling and had
appealed against it vide a Notice of Appeal filed on
26/10/2015 on two grounds of appeal. The Record of Appeal
was duly transmitted to this Court on 16/11/2015. The
Appellant's brief was duly filed on 23/12/2015. The 1st
Respondent��s brief was duly filed on 10/2/2016. The 2nd
Respondent did not file any brief.
At the hearing of the Appeal on 16/2/2016, A. B.
Babakano, Esq., learned counsel for the Appellant
adopted the Appellant's brief and urged the Court to allow
the appeal and to set aside the ruling and order absolute
made by the Court below and to discharge the Appellant.
On their part, C. O. Ezenwelu Esq., learned Senior
counsel for the 1st Respondent with Uche Nwigwe, Esq.,
adopted the 1st Respondent's brief and urged the Court to
dismiss the appeal for lacking in merit and to affirm the
ruling and order absolute made against the Appellant by
the Court below. M. A. Umar, Esq., Learned State Counsel
1 for the 2nd Respondent who did not file
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any brief told the Court they did not file any brief since
Garnishee proceedings is strictly between the
Garnishor/Creditor and the Garnishee.
At the Court below, the Appellant as Garnishee ordered to
show cause, had filed an affidavit to show cause deposing
inter alia thus:"4. That the order was for the Garnishee
to show cause why a Garnishee order absolute should
not be made attaching that alleged funds or monies
belong to the judgment debtor in custody or
possession of Garnishee in accounts Nos.
6013912703, 6013912022, and 601392006 for the
purpose of satisfying the judgment debt in this matter
and for the cost of the application.
5. That the accounts belonging to the judgment
debtor, Adamawa State Government, which the
Garnishee order Nisi sought to attach are accounts
which has the following balances as at the date the
order Nisi was served on the Garnishee Bank:
i. Account No. 6013912022 (Nuban No. 1011247747)
has a balance of N96,658,991.94 DR.
ii. Account No. 6013922006 (Nuban No. 1011247792)
has a debit balance of N1,566,739.96 DR.
i i i . Account No. 6013912703 (Nuban No.
1 0 1 1 3 2 5 4 6 7 ) h a s a c r e d i t b a l a n c e o f
N3,587,651,297.71 CR.
6. That I also know as a fact
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that the judgment debtor also has a term loan
account No. 3700218383 which has a debit balance of
N11,700,547,558.61 Dr as at the date the Garnishee
was served with the Garnishee order Nisi.
7. That the Garnishee has a lien over the funds
contained in account No. 6013912703 (Nuban No.
10111325467) and same constitutes part of the
security of the said facility granted to judgment
debtor for which the judgment debtor has executed a
letter of set-off. The copy of the letter of set-off is
herewith attached and marked as Exhibit A.
8. That there are no funds belonging to the judgment
debtor available for attachment in satisfaction of the
judgment sum.
9. That the judgment debtor does not have funds with
the Garnishee capable of being attached as the
judgment debtor is currently indebted to the
Garnishee to the tune of N96,658,991.94 Dr in
account No. 6013912022, N1,566,739,971.96 DR in
Accounts No. 0613922006 and N11,700,547,568.61
DR in Account No. 3700218384, i.e. the 2 accounts
which the Garnishee order sought to attach and the
judgment debtor term loan accounts of the judgment
debtor and the other letters through which the
facilities were granted to the judgment
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debtor which are shown to me are herewith attached
as Exhibits B, C, D, E, F and G respectively."
See pages 33 – 35 of the Record.
Amongst the Exhibits place at before the Court below by
the Appellant in support of the affidavit to show cause are
the following documents, namely:
1. A letter dated 20/10/2014 stating inter alia as follows:
The Managing Director,
Zenith Bank Plc,
Plot 84, Ajose Adeogun Street,
Victoria Island.
Lagos.
Dear Sir,
AUTHORITY TO SET-OFF OUTSTANDING BALANCE
ON THE RESTRUCTURED CREDIT FACILITY OF
N12,803,763,500.00 AT MATURITY AGAINST
ADAMAWA STATE SRA ACCOUNT FOR ANY
ACCOUNT MAINTAINED WITH ZENITH BANK PLC.
We hereby authorize your bank to set-off any
outstanding balance on the above stated credit
contained in the offer letter dated August 19th, 2014.
Please accept on behalf of his Excellency Barr. Bala
James Nggilari, our assurance of highest esteem and
considerations." See page 35 of the Record.
2. A letter dated 15/10/2014, stating inter alia as follows:
Office of the Governor
Adamawa State Government
C/o Office of the State Accountant General
AdamawaAdamawa State
Dear Sir
RESTRUCTURE OF CREDIT FACILITY
We are pleased to advise that the Management
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of Zenith Bank Plc, has approved the review of our
earlier office of Credit facility vide letter dated
August 19, 2014 to your State as requested under the
following and conditions:
Lender: Zenith Bank Plc ("Zenith")
Borrower: Adamawa State Government
Type of Facility: Term Loan
Amount: N12,803,763,500.00
Purpose: To re-finance the State's existing obligations
to Zenith.
Disbursement: The facility shall be made available for
drawdown upon satisfactory compliance with the
conditions precedent.
Tenor: Sixty Months.
Conditions Precedent:
10. Receipt of letter of Set-off from Adamawa State
Government authorizing Zenith to Set-off any
outstanding balance of the facility at expiration
against its FAAC Account or any other Accounts
maintained with Zenith.
Other Conditions
3. Zenith Reserves the right to review the terms and
conditions of these facilities from time to time in the
light of changing market conditions and also to
terminate these banking facilities and accelerate the
maturity of your indebtedness based on any adverse,
information threatening the basis of this relationship
or putting the banking facilities at risk of loss and as
a result of any breach of the terms
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and conditions of these facilities. Adamawa StateGovernment shall be notified before any decisions istaken in this respect.4. Zenith Bank reserves the right to security,syndicate or sell its interest in this credit facilitybased on its global risk/liquidity managementobjectives during the period of the facility. See pages41-43 of the Record.3. A letter dated 2/12/2014 stating inter alia as follows:Office of the GovernorAdamawa State GovernmentGovernment House YolaAdamawa StateDear Sir,OFFER OF CREDIT FACILITYWe are pleased to advise that the Management ofZenith Bank Plc has approved a credit facility foryour State as requested under the following termsand conditions:Lender: Zenith Bank Plc ("Zenith")Borrower: Adamawa State GovernmentType of Facility: Agric Term Loan (CACS)Amount: N2,000,000,000.00Purpose: To finance on-lending to medium andsmall scale farmers in the State.Disbursement: Disbursement of this facility issubject to receipt by Zenith of funds from CBNunder the Commercial Agricultural Credit Schemeand compliance with all conditions precedentto draw down.Security 2: Letter of Set-Off from Adamawa StateGovernment.Conditions Precedent10.
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Receipt of Letter of Set-off from Adamawa State
Government authorizing Zenith to set-off any
outstanding balance on the loan at expiration against
any of the State Government Parastatals and Ministry
Accounts with Zenith.
Other conditions
3. Zenith reserves the right to review the terms and
conditions of this facility from time to time in the
light of changing market conditions and also to
terminate this banking facilities accelerate the
maturity of your indebtedness based on any adverse
information the basis of this relationship or putting
the banking facility at risk of loss and as at a result of
any breach of the terms and conditions of this facility.
Adamawa State Government shall be notified of any
decision taken in this regard.
7. Zenith Bank reserves the right to securities
syndicate or sell its interest in this credit facility
based on its global risk/liquidity management
objectives during the period of the facility. See pages
45 – 47 of the Record.
It was on the strength of the affidavit of the Appellant as
Garnishee that the 1st Respondent as Garnishor filed
through his counsel a reply affidavit deposing inter alia
thus:
3. That I know as a fact
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that on17/12/2013, the judgment debtor/applicant
filed a motion ex parte praying the Court to order a
Garnishee order Nisi against the Garnishee the
amount standing in the following account numbers of
the judgment Debtor/Respondent with the Garnishee:
6013912703 (NUBAN No. 1011325467), 60139129022
(NUBAN No. 1011247747) and 6013922006 (NUBAN
No. 1022347792) sufficient to satisfy the judgment
Debt of N101,019,000.00 and a cost of N70,000.00
awarded in suit No. ADSY/83/2007 decided by this
Court.
4. That I have seen and read the Garnishee’s affidavit
29/7/2015 and I know as a fact that the depositions
contained in paragraphs 5, 6, 7, 8, 9, and 11 are not
true.
5. That Exhibit "D" attached to the Garnishee's
affidavit, which is one of the Account numbers the
Applicant is praying the Court to attach has a credit
balance of N3,587,651,297.71 (Three Billion Five
Hundred and Eighty Seven Million, Two Hundred and
Ninety Seven Thousand, Seventy One Kobo) as at the
date the order Nisi was served on the Garnishee bank
and there is no order of the Court or a suit before this
Court restraining its attachment.
6. That Exhibit "F" and "G" show that the Garnishee
and the
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judgment debtor/Respondent are in business, leading
to offering and restructuring of credit facility.
7. That I know as a fact that if the judgment
Creditor/Applicant's judgment sum and cost awarded
are paid through the attachment of account Number
1011325467 it will not prejudiced the Garnishee. See
pages 48-49 of the Record.
My lords, it was on the strength of the above state of
affidavit and documentary evidence of the Appellant and
the 1st Respondent that the Court below had held in its
ruling appealed against by the Appellant inter alia thus:
"From the affidavit evidence of the Garnishee and the
Exhibits with the submission, it is not disputable that
the judgment debtor maintains four accounts with the
Garnishee. These accounts are as follows:
a. Exhibit B - Account No. 6013912022 (NUBAN No.
1011247747) with debit balance of N96,658,991.91
DR;b. Exhibit C - Account No. 6013922006 (NUBAN
No . 1011247792) w i th deb i t ba lance o f
N1,556,739,971.96 DR;c. Exhibit D - Account No
6013912703 (NUBAN No. 1011325467) with credit
balance of N3,587.651,291.71 CR;d. Exhibit E -
Account No. 3700218384 with debit balance of
N1,700,547,558.61 DR …. The total of the sums
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in the Exhibits B, C and E amounts to the sum of
N13,363,946,532.51 DR from the affidavit evidence
the above is the debt owed by the judgment debtor to
the Garnishee after merging the three accounts. The
judgment debtor has a credit balance of the sum of
N3,587,651,291.71 CR. with the Garnishee as per
Exhibit C. … From my reading of the Garnishee
affidavit to show cause i.e. paragraph 6. Account no.
3700218384 is the term loan account with a debit
balance of N11,700,547,568.61 DR. Even though the
Garnishee has not stated in the affidavit how the loan
in account No. 3700218384 "E" was served or
acquired, I am of the opinion that the loan acquired
vide Exhibit "E". I have the opinion because the
Garnishee in paragraph 10 of its affidavit to show
cause stated the accounts of the judgment debtor
which three are in debit and one is credit and how the
facilities were granted but did not tie Exhibits A, F
and G to any particular account… I am also of the
same opinion that from the affidavit, the facility in
Exhibit "C" is the one acquired vide Exhibits G… If my
opinion is correct which I hold is so, then the
garnishee did not help this Court by
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willfully or deliberately refusing to state clearly by
what means the facilities in Exhibit "C" and "F" were
acquired by the judgment debtor…. before I answer
the issue raised, it is clear from the affidavit evidence
and the Exhibits before me that the facility in Exhibit
"C" as acquired or granted to the judgment debtor
vide Exhibit "G" has a tenure or maturity period of 24
months while the facility in Exhibit "E" as acquired or
granted vide Exhibit "F" has a maturity period of 60
months. I accordingly so hold… The question is have
the facilities in Exhibits "C" and "E" which have a life
span or maturity period of 24 months and 60 months
accrued for determination to enable it act as a lien or
set-off? My answer is that they have not matured and
therefore I am of the opinion that they cannot act as
lieu or set-off against the judgment sum of the
judgment creditor. Furthermore, considering the
content of Exhibit "A" in the affidavit filed by the
Garnishee to show cause, can set-off or lien apply
herein against the judgment sum before the maturity
dates or Exhibit "C" as acquired vide Exhibit "G" and
Exhibit "E" as acquired vide Exhibit "F" for the
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purpose of clarity, I reproduce Exhibit "A" of the
garnishee herein…. After reading Exhibit "A"
produced above, I have read Exhibit "E" for which
Exhibit "F" has categorically given the period of
maturity Exhibit "A" provide for set-off at maturity of
Exhibit "E" as acquired vide Exhibit "F". Since Exhibit
"A" in the Garnishee affidavit to show cause
specifically by the judgment debtor can be made on
the date of maturity. I hold that this is a specific
agreement of the judgment debtor and the Garnishee
which cannot be altered before the due date of
maturity of 60 months and 24 months for the purpose
of defeating the judgment sum of the judgment
creditor. I hold that based on the affidavit and Exhibit
"A" in the Garnishee affidavit to show cause no set-off
can be applicable to the accounts in Exhibit D and E
as acquired vide Exhibit "F" and "G" nor any other
account maintained by the judgment debtor with the
Garnishee since they have not matured… From the
affidavit evidence before me and the Exhibits, I am of
the opinion and hold that the Garnishee has not
shown sufficient cause not to make a Garnishee Order
Nisi Absolute. I have also read Exhibit
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"B" which does not indicate when the facility was
acquired and therefore does not indicate any date of
maturity. However, looking at Exhibit "A" I am of the
opinion and hold that the maturity date is the same
date as those of Exhibit "C" and "E", it therefore
follows that the account in Exhibit "B" cannot be sued
as any set-off or lien on the judgment sum of the
agreement creditor before the date of maturity." See
pages 95-100 of the Record.
In the Appellant's brief, two issues were distilled for
determination, namely;
(1) Whether the learned trial judge was right when he
held that the Appellant has not shown sufficient
cause why the Garnishee Order Nisi should not be
made absolute.
(2) Whether the learned trial judge was right when he
held that the Garnishee/Appellant cannot exercise the
right of lien or set off over the funds on the judgment
sum of the Judgment Creditor/1st Respondent before
the date of maturity.
In the 1st Respondent's brief, two issues were also distilled
for determination, namely;
(1) Whether from the totality of the affidavit
evidence, the trial judge was justified to make the
order Nisi absolute?
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(2) Whether the trial judge was wrong to
14
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CA)
have held that the right of him or set off was not
available to the Appellant in the instances of this
case?
I have given due consideration to the facts and
circumstances as can be seen in the printed Record and it
does appear to me that the two issues as distilled by the 1st
Respondent are the apt issues arising for determination in
this appeal and which shall be considered together and
resolved in one fell swoop since the real crux of the issue in
this appeal is simply whether the Court below was right
when it held that the Appellant had not shown cause why
the Garnishee Order Nisi should not be made absolute
against the Appellant? A consideration of these two apt
issues together would in my view invariably involve a
consideration of the two issues as distilled by the Appellant.
I shall therefore proceed to do so anon.
ISSUES NOS: 1 & 2 TAKEN TOGETHER
1: Whether from the totality of the affidavit evidence,
the trial judge was justified to make the order Nisi
absolute?
2: Whether the trial judge was wrong to have held
that the right of him or set off was not available to
the Appellant in the instances of this case?
Learned counsel for the Appellant had
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submitted that from the affidavit evidence adduced before
the Court below, the 2nd Respondent is indebted to the
Appellant to the tune of N96,658.991.94 DR in Account
No.6013912022, the sum of N1,566,739,971.96 DR in
A c c o u n t N o . 6 0 1 3 9 2 2 0 0 6 a n d t h e s u m o f
N11,700,547,568.61 in the term loan account
No.3700218384, which are the 2 other accounts which the
Garnishee Order Nisi sought to be attached and the
judgment debtor term loan account respectively as in
Exhibits A, B, C, D, E, F and G of the Appellant��s affidavit
to show cause.
It was further submitted that the 1st Respondent did not
effectively deny or controvert the facts deposed to in the
Appellant��s affidavit showing cause why the Garnishee
Nisi Order should not be made absolute and contended that
the 1st Respondent was only relying on the fact that one of
the accounts sought to be attached by the Garnishee Nisi
Order, account No. 6013912703 (NUBAN No. 1011325467)
has a credit balance of N3,587,651,291.71 but did not deny
or effectively controvert the facts deposed to by the
Appellant that the 2nd Respondent is also indebted to the
Garnishee to the tune of N96,658,991.94 DR. in account
No.
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6013912023, the sum of N1,566,739,971.96DR in account
No.6013922006, which are the 2 other accounts sought to
be attached by the 1st Respondent.
It was further submitted that the 2nd Respondent is also
i n d e b t e d t o t h e A p p e l l a n t i n t h e s u m o f
N11,700,547,568.61 in the term loan account No.
3700218384 as clearly shown in the Appellant��s affidavit
to show cause together with all the attached Exhibits and
contended that the relationship between a bank and its
customer is a relationship of debtor and creditor and thus
when a bank credits the current account of its customer
with a certain sum, the bank becomes a debtor to the
customers in that sum and conversely when the bank debits
the current account of the customer with a certain sum, the
customer becomes a debtor to the bank in that sum and
unless precluded by agreement express or if it is a trust
account, any two accounts opened in the name of the same
person can be combined or merged together by the bank
for the purposes of ascertaining the credit or debit status of
the customer. Counsel relied on First Inland Bank Plc v.
Effiong (2010) 16 NWLR (Pt. 1218) @ p. 99.
It was also submitted that the Appellant
17
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CA)
is entitled to the defense of lien, which he contends is a
legal right reserved in a person to retain another��s
property which is rightfully and continuously in his
possession until present and accrued claim of the person in
possession are satisfied and can be exercised whether a
right of set off had become matured or not. Counsel relied
on Afrotite Sev. Nig. Ltd V. MIA & Sons Ltd (2000) 5
NWLR (Pt. 692) @ p. 730; OAU v. Olanihan (1996) 8
NWLR (Pt. 464) 123; First Inland Bank v. Glory
Effiong (supra)
Learned counsel for the Appellant further submitted that by
virtue of Exhibits A, B, C, D, E, F and G attached to the
Appellant affidavit to show cause, the Appellant has a lien
over the funds contained in Account No. 6013912703
(NUBAN No. 1011325467) as same constituted part of the
security of the said facility granted to the 2nd Respondent
for which the 2nd Respondent has executed a letter of set-
off and contended that the term loan granted to the 2nd
Respondent has matured by virtue of Exhibit G, which was
for 60 months, the period within which the 2nd Respondent
is expected to liquidate the whole debt based on repayment
of sixty equal and consecutive
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monthly repayment of N311,362,652,10 with effect from
19th August, 2014.
It was also submitted that in law there is a distinction
between the right of lien and set off in that while a lien is a
legal right reserved in a person to retain another person's
property which is rightfully and continuously in his
possession until the present and accrued claims of the
person in possession are satisfied, a set-off on the other
hand is a counter demand generally of a liquidated debt
growing out of an independent transaction for which an
action might be maintained in law. Counsel relied on
Afrote Nigeria Ltd. v. MIA & Sons Ltd (2000) 5 NWLR
(Pt. 692) 730.
It was further submitted that even though the Appellant is
in possession of the money belonging to the 2nd
Respondent, the money or part of it cannot be paid over to
the 1st Respondent because the 2nd respondent is also
indebted to the Appellant and contended that a lien or set
off is a legitimate defense available to every Garnishee
summoned to show cause why the Garnishee Order Nisi
should not be made absolute, provided there is evidence to
show that the judgment debtor is also indebted to the
Garnishee. Counsel
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CA)
relied on OAU V. Olanihun (1996) 8 NWLR (Pt. 464)
123; Fidelity Bank Plc v. Francis Okwuowulu (2002)
LPELR (CA); First Inland Bank Plc v. Glory Effiong
(2010) 16 NWLR (Pt. 1218) @ P. 199.
Learned counsel for the Appellant submitted that the Court
below was wrong when it held that the Garnishee/Appellant
cannot exercise the right of lien or set-off over the funds in
its possession before the date of maturity and should pay
over the judgment sum to the 1st Respondent and urged
the Court to allow the appeal and to set aside the ruling of
the Court below and to discharge the Appellant.
On their part, learned counsel for the Respondent had
submitted that the Appellant's affidavit to show cause did
not show sufficient cause that will warrant the Court below
not to make the Garnishee Order Nisi absolute and
contended that the first 3 accounts were attached by the
lower Court, with Exhibit "D" having a credit balance of
N3,587,651,291,71, while the fourth account Exhibit "E"
was only revealed in the Garnishee's affidavit to show
cause and outside Exhibits "B" "C", "D" AND "E"
aforementioned, which were Exhibits A, F and G.
It was further submitted that the deliberate
20
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CA)
refusal of the Appellant to attach Exhibits A, F and G to any
particular account number having stated that they were
offer letters through which the facilities were granted did
not help the Appellant's case and contended a cursory look
at Exhibit "F" shows that it is a restructured credit facility
on term loan, which relates it to Exhibit E while Exhibit G
relates to Exhibit C and thus Exhibit A which is an authority
to set-off outstanding balance on the Restructured Credit
Facility at Maturity against Adamawa State will only come
into effect when the facilities covered by it come into effect
when the facilities covered by Exhibits F and G are
matured.
It was also submitted that the Appellant��s claim of right of
lien or set-off over funds contained in account No.
(NUBAN) 1011325467 was misconceived and untenable
because the authority of set-off in Exhibit A ties the
Appellant's power to exercise right of set-off or lien over
Exhibits C and E granted through Exhibits G and E that
have maturity period of 24 months and 60 months
respectively.
Learned counsel for the 1st Respondent submitted that the
Court below was right in holding that the right of lien or
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CA)
set off was not available to the Appellant in that a right of
lien or set-off is only as to accrued interest and not when
the loan is yet to mature as in the instant appeal even
though generally the law is that a Garnishee has a right of
set off or lien but on maturity of the loan as agreed in the
Exhibits relied upon by the Appellant, which findings were
not even appealed against by the Appellant and thus
binding whether rightly or wrongly made by the Court
below. Counsel relied on Onafowokan v. Wema Bank Plc
(2011) ALL FWLR (Pt. 201) 204; Nwaolisah v.
Nwabufoh (2011) ALL FWLR (Pt. 591) 1438.
My lords, the very straight forward and I dare say very
simple issue, but made seemingly difficult by the
submissions of learned counsel for the respective parties, is
whether the Appellant on the strength of its affidavit
together with the annexed documentary Exhibits placed
before the Court below, and forming part of the Record of
Appeal, showed cause why the Garnishee Order Nisi should
not be made absolute by the Court below? In other words
and very simply put: is the Appellant entitled to the defense
of set off and or lien as constituting sufficient cause why
the
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Garnishee Order Nisi ought not to have been made
absolute by the Court below?
I had earlier reproduced in extenso in this judgment the
affidavit of the Appellant and the supporting documents
and also the reply affidavit of the 1st Respondent. The
parties are ad idem to a large extent on some of the crucial
issues in this appeal. There is no dispute that on the
strength of the copious documentary Exhibits placed before
t h e C o u r t b e l o w b y t h e A p p e l l a n t , t h e 2 n d
Respondent/Judgment debtor is a customer to the Appellant
and maintains several accounts with the Appellant. In law,
the Appellant being a Banking Financial Institution, is
clearly in business for the purposes of making profits from
its transactions with its customers and not a father
Christmas and therefore entitled to due repayments of
loans extended to its customers.
A Garnishee proceedings is one by which a judgment
creditor originates a third party proceedings against a
person indebted to the judgment debtor to pay over directly
to the judgment creditor such money as are due to the
judgment debtor.
In law, by the banker/customer relationship, the money of a
customer is in contract and money in the
23
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CA)
hands of the bank is borrowed from the customer. As such,
until it has been demanded for by the customer it remains
in the custody and control of the bank for use. The
relationship in law between a banker and its customer is
therefore, that of Debtor and Creditor. See Yesufu v.
African Continental Bank Ltd. (1981) 1 SC 74, where
Bello JSC., (as then was later CJN) had @ p. 95 explained
these principles of banking law and practice thus:
"Where a banker credits the current account of its
customer with a certain sum, the banker becomes a
debtor to the customer in that sum; Joachimson v.
Swiss Bank Corporation (1921) 3 KB 110. And
conversely when a bank debits the current accounts
of its customer with a certain sum, the customer
becomes a debtor to the bank in that sum; See Paget
Law of banking. 8th Edition 9.84"
See also First Bank of Nigeria Ltd & Anor v. Moba
Farms Ltd & Ors (2005) 8 NWLR (Pt. 928) 515; First
Inland Bank Plc v. Glory E. Effoing (2010) 16 NWLR
(Pt. 1218) 199 @ p. 206; Augustine Chigozie Uba v.
Union Bank of Nigeria Plc (1995) 7 NWLR (Pt. 405)
72 @ p. 72.
A Garnishee proceeding is thus a procedure legally
approved by law for enforcing a
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money judgment by the seizure or attachment of the debt
due and accruing to the judgment debtor which forms part
of his money in the hands of a third party for attachment.
Therefore in law, the onus placed on a Garnishee would
only be discharged where it successfully establishes that
the account or accounts covered by the Garnishee Order
nisi do not exist in its system or if exist, it is in debt and not
in credit or that it has a right of set off or lien which are
due effective against the customer. See UBN Plc. v. Boney
Marcus Industries Ltd. (2005) All FWLR (Pt. 278)
1037 @ pp. 1046-1047. See also Fidelity Bank Plc. v.
Okwuowulu (2012) LPELR-8497(CA); Citizens
International Bank v. SCOA (Nig) Ltd. (2006) 18
NWLR (Pt. 1011) 334.
In law, it is now well settled beyond any dispute that a
Garnishee is entitled to the defense of lien or set off as
rightly recognized even by the Court below. A lien is a legal
right reserved in a person to retain another's property
which is rightly and continuously in his possession until
present and accrued claims of the person in possession are
satisfied. See Afrotec Tech. Serv. (Nig) Ltd. v. Mia &
Sons Ltd (2000) 15 NWLR (Pt.
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6) LP
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327(
CA)
692) 739; OAU v. Olanihun (1996) 8 NWLR (Pt. 464)
123.
So the question is whether on the facts as furnished before
the Court below as in the Record, did the Appellant show a
right of set off or lien as would constitute sufficient reason
why the Garnishee Order Nisi ought not to have been made
absolute by the Court below?
Now, in law while right of set off may not accrue unless and
until the debt had matured for payment and thus money
standing to the credit of a judgment debtor would be
available to satisfy a judgment creditor, the right of lien is
not dependent on the maturity of the debt for repayment
and thus can be exercised by the bank even before the loan
or debt of the customer becomes due to protect itself from
suffering unforeseeable losses should the circumstances
warrant it. See First Inland Bank Plc v. Glory Effiong
(supra). In Fidelity Bank Plc v. Francis Okwuowulu
(supra),
In Fidelity Bank Plc V. Francis Okwuowulu (supra)this
Court per Ogunwumiju, JCA had stated thus:
"The authorities are of the view that a garnishee is
entitled to set-off any debt to him from the judgment
debtor at the date when the order nisi was served
upon him and the garnishee is equally entitled to a
counter claim against
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judgment debtor, at any rate where it arises out of the
same transaction of the debt sought to be attached.
See Tapp v. Jones (1974) LR 10 QB 591 @ P. 593. See
also: Hale v. Victoria Plumbing Co. Ltd (1966) 2 QB
746."
In considering the question whether or not the Appellant
made out or showed cause why the Garnishee Order Nisi
ought not to have been made absolute by the Court below, I
think and deem it apposite to consider the relevant
provisions of the law governing Garnishee proceedings and
the onus placed on a Garnishee ordered to show cause by a
Court. The relevant legislation is Section 83 of the
Sheriffs and Civil Process Act; which succinctly provides
thus:
"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 affidavit by the applicant of
his legal practitioners that judgment has been
recovered and that it is still unsatisfied 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,
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hereinafter called the garnishee, to such debtor shall
be attached to satisfy the judgment or order, together
with 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 have
obtained such judgment or order the debt due to from
him to such debtor or so much thereof as may be
sufficient to satisfy the judgment or order together
with the costs aforesaid."
In the circumstances in which it is of common ground
between the parties that the 2nd Respondent/Judgment
Debtors operates several accounts with the Appellant, it is
important to bear it in mind that in law unless an account is
a trust account, any two or more accounts opened in the
name of the same person can be combined or merged
together unless there is an agreement to the contrary. See
First Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt.
1218) 99.
A banker such as the Appellant is thus in law entitled to
combine the several accounts of the 2nd Respondent for
the purposes of determining the amount standing either to
the credit or debit of the customer. See Halsbury's Laws
28
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CA)
of England Vol. 2, 3rd Edition paragraph 32 at page
172 stated the legal position thus:
"Unless precluded by agreement, express or implied
from the course of business, the banker is entitled to
combine different accounts kept by the Customer in
his own rights even though at different branches of
the same bank, and to treat the balance, if any as the
amounts really standing to his credit."
My lords, having reiterated the relevant and applicable
principles of law, let me now consider the facts as placed
before the Court below to see whether or not the Court
below was right when it held that though the Appellant
generally has a right of set off and or lien over the funds of
the 2nd Respondent/Judgment debtor in its custody but in
the circumstances of this case those rights were not yet
available to the Appellant since the debts due or loans were
not yet matured for repayment and thus the Appellant did
not show any cause why the Garnishee Order Nisi should
not be made absolute.
In the affidavit to show cause, it was placed before the
Court below that the 2nd Respondent had, in addition to
the only three accounts brought to its attention by the 1st
Respondent in the
29
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application exparte for Garnishee Order Nisi, a fourth
account of a term loan with a debit balance of
N11,700,547,558.61 and that a combination of the several
accounts of the 2nd Respondent/Judgment debtors would
show readily that the 2nd Respondent/Judgment debtor is
heavily indebted to the Appellant in Exhibits B, C, and E
and thus had no credit to its name that could be paid over
to the 1st Respondent/Judgment creditor in satisfaction of
the judgment debt. In proof of these depositions the
Appellant furnished before the Court below Exhibits B, C,
E, F and G. In Exhibit E alone, the 1st Respondent is shown
to be indebted to the Appel lant in the sum of
N11,700,547,558.61 on Account no. 3700218383, an
amount far in excess of the judgment debt sought to be
r e c o v e r e d f r o m t h e A p p e l l a n t b y t h e 1 s t
Respondent/Judgment Creditor.
In response what did the 1st Respondent say in his reply
affidavit? He authorized his counsel to respond on his
behalf to state that so long as there is standing to the credit
of the 2nd Respondent/Judgment debtor the sum of
N3,587,651,296.71 to its credit in Account no. 1011325467,
it was sufficient to cover the judgment sum and was rightly
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attached in satisfaction thereof, and I may add this is
notwithstanding the several documents showing the high
level of indebtedness of the 2nd Respondent/Judgment
debtor to the Appellant.
So did the 1st Respondent succeed in challenging the
contents of affidavit of the Appellant as placed before the
Court below as to the crucial issue of fact of the heavy
indebtedness of the 2nd Respondent/Judgment debtor to
the Appellant? I think not. The law is well settled that
specific allegation of facts contained in an affidavit must be
specifically denied as general or bare or banal traverse or
denial leaves such allegations of facts as deemed admitted
and thus requiring no further proof. This was what the 1st
Respondent simply did through his counsel when they
deposed on his behalf that "I know as a fact that the
depositions contained in paragraphs 5, 6, 7, 8, 9, 10
and 11 are not true." In law such general denial amounts
to nothing! See Raphael Nwakwo v. Japhet Ofomata
(2009) 11 NWLR (Pt. 1153) 496, where this Court per
Sanusi, J.C.A. (as he then was now JSC) stated emphatically
thus:
"The law is trite and well settled too, that where a
party denies a deposition in an
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affidavit or pleadings, he must depose to facts which
he wants the Court to accept and not just make a
general or sweeping denial like that as in the instant
case."
See Thanni v. Saibu (1977) 2 SC 123; Ogunsola v.
Usman (2002) 14 NWLR (Pt. 788) 636;
Chief Biodun Olujinmi v. Ekiti State House of
Assembly & Anor (2009) 11 NWLR (Pt. 1153) 464.
It follows therefore that since the 1st Respondent had no
answer to the facts as deposed by the Appellant on the
s t a t e o f h e a v y i n d e b t e d n e s s o f t h e 2 n d
Respondent/Judgment debtor to the Appellant, that ought
to have been the end of the matter as a banker to whom a
judgment debtors is as well indebted to has no duty paying
over any money not available to a judgment creditor on
behalf of a judgment debtor also indebted to the bank. In
law, the depositions in the affidavit of the Appellant having
not been countered by the 1st Respondent/Judgment
creditor, those depositions remained unchallenged and
ought to have been acted upon by Court below. See Effang
Effiom Henshaw v. Effang Essien Effanga (2009) 11
NWLR (Pt. 1153) 65. See also Okoebor v. Police
Council (2003) 12 NWLR (Pt. 834) 444; Adeleke v.
Iyanda (2001) 13 NWLR (Pt.
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CA)
729) 1
My lords, having held that by Exhibit E, the 2nd
Respondent/Judgment was shown to be heavily indebted to
the Appellant in sums far and above the N3,587,651,291.71
CR in Account No. 6013912703 NUBAN No. 1011325467,
the Court below ought to have held that the Appellant
showed sufficient cause why the Garnishee Order Nisi
Ought not to be made absolute.
However, the view and finding of the Court below was that
since the Exhibit E was the product of a term loan which
maturity period of 60 months was not yet due, the
Appellant cannot rely on the defense of right of set off or
r i g h t o f l i e n o v e r t h e f u n d s o f t h e 2 n d
Respondent/Judgment debtor in its account in credit as in
Exhibit D and therefore made the Garnishee Order Nisi
absolute on that account. Was the Court below right or
wrong in its decision to the above effect?
It has been submitted for the Appellant that in law a bank
has the right to merge several accounts of a customer with
it to determine the credit standing of the customer so long
as the account is not a trust account and there was also no
agreement to the contrary between the parties. It was also
submitted for the Appellant that with the heavy
33
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indebtedness of the 2nd Respondent to the Appellant as in
Exhibit E, the Appellant has a right of lien on the credit
standing to 2nd Respondent in Exhibit D, notwithstanding
the maturity date of the loan in Exhibit E.
On the other hand, it was submitted for the 1st
Respondent/Judgment Creditor that in so far as the term
loan in Exhibit E was not matured for repayment, the
Appellant has no right of lien over the credit standing to
the 2nd Respondent/Judgment Debtor in Exhibit C, which
was thus available to be attached and that the Garnishee
Order Nisi was thus rightly made absolute by the Court
below.
The answer to these divergent contention is one simply well
settled in law and can be found by the profound statement
on the law by this Court in First Inland Bank Plc. v.
Effiong (supra) @ p. 207, this Court per Aka'ahs JCA (as
he then was now JSC.,) had put this issue in its proper
perspective thus:
"In the affidavit to show cause why it should not pay
the judgment debtor, the Appellant annexed Exhibits
CA1 and CA2 to show that the judgment debtor did
not have any credit balance in appellant bank. Instead
it was owing the bank because of the loans the bank
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has advanced to the judgment debtor. The Courtwas wrong to conclude that since the loans weresecured, the Appellant could not claim a lien overthe credit balance in the judgment debtor'saccount. As the judgment debtor owed more thanthe amount standing to its credit, it was a debtor tothe bank and there is nothing to show that thecurrent account the judgment debtor maintainedwith the banks was held in trust for anotherperson, and so could not be merged with the loanaccount. Furthermore, there is no argument orfinding that the various loans granted to thejudgment debtor had been liquidated which left thejudgment debtor with a credit balance that couldbe attached and garnished by the judgmentcreditor/Respondent."
In my finding therefore, not only has the Appellant theplenitude of right and power in the absence of anyagreement to the contrary to merge all the severalaccounts of the 2nd Respondent/Judgment Debtor inExhibits B, C, D and E to determine the credit or debitstanding of the 2nd Respondent/Judgment debtor, it alsohas in law a lien over the credit balance in Exhibit Dwhich far less than the huge debt of the 2nd
35
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Respondent/Judgment Debtor in Exhibit E and that the
Appellant's right of lien is alive, active and effective and not
dependent on the maturity of term loan being not a claim in
set off which ordinarily would not arise until the due
maturity date for repayment of a loan. See Afrotec Tech.
Serv. (Nig) Ltd. v. Mia & Sons Ltd (2000) 15 NWLR
(Pt. 692) 739. See also OAU v. Olanihun (1996) 8
NWLR (Pt. 464) 123; UBN Plc. v. Boney Marcus
Industries Ltd. (2005) All FWLR (Pt. 278) 1037 @ pp.
1046-1047; Fidelity Bank Plc. v. Okwuowulu (2012)
LPELR-8497(CA); Citizens International Bank v. SCOA
(Nig) Ltd. (2006) 18 NWLR (Pt. 1011) 334; First
Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218)
99.
The Court below appears to have been too fixated on the
credit in Exhibit D and fell into grave error when it held
that the Appellant was not entitle to a right of lien over the
credit in Exhibit D when it was shown clearly the
uncontroverted heavy indebtedness of the 2nd
Respondent/Judgment Debtor to the Appellant in Exhibit E.
The Court in its bid to justify its position even veered off
into so much speculation of the affidavit evidence of the
Appellant, to which there was
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n o t h i n g p u t i n c h a l l e n g e o f i t b y t h e 1 s t
Respondent/Judgment Creditor when it stated inter alia
thus:
"I have also read Exhibit "B" which does not indicate
when the facility was acquired and therefore does not
indicate any date of maturity. However, looking at
Exhibit "A" I am of the opinion and hold that the
maturity date is the same date as those of Exhibit "C"
and "E", it therefore follows that the account in
Exhibit "B" cannot be sued as any set-off or lien on
the judgment sum of the agreement creditor before
the date of maturity."
See page 100 of the Record.
I therefore cannot but agree with the apt and unassailable
submissions of learned counsel for the Appellant that the
Court below ought to have averted its mind sufficiently to
the largely unchallenged affidavit evidence of the Appellant
and had it done so it would not had come to the perverse
finding as it did that the Appellant did not show sufficient
cause why the Garnishee Order Nisi ought not to have been
made absolute. Consequently, it is my view and I so hold
that the evaluation of the evidence by the Court below was
skewed and deficient as clearly the unchallenged evidence
before it was most
37
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inadequately considered by it. If the learned trial judge had
properly considered the unchallenged evidence before him
in the light of the relevant and applicable principles of law
and without jettisoning in a hurry the decision in
Afrotec Services Nig. Ltd v. MIA and Sons Ltd (supra)
and OAU v. Olanihun (supra) as he did at page 97 of the
Record of Appeal, he should not have arrived at the
perverse conclusion he did. See H. S. Engineering Ltd v.
S. A. Yakubu Nig. Ltd. (2009) 10 NWLR (Pt. 1149)
416. See also Ajomale v. Yaduat (No. 2) (1991) 5
NWLR (Pt. 191) 257 @ pp. 282-283.
My lords, the 2nd Respondent/Judgment Debtor had not
filed any brief and had also not urged anything at the
hearing of this appeal and that is understandably so as in
law he is but a mere passive or nominal party in a
Garnishee proceeding, which is strictly between the
Ganishor/Judgment Creditor and the Garnishee. See Wema
Bank v. Brasterm Sterr Nig Ltd. (2012) All FWLR (Pt.
624) 107 @ pp. 111-112.
In the light of my findings above, I have no difficulty
resolving the first issue for determination in the negative
against the 1st Respondent in favor of the Appellant,
resolving the second
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issue if the positive in favor of the Appellant against the 1st
Respondent. I hold firmly therefore, that the appeal has
merit and ought to be allowed. It is hereby allowed.
In the result, the ruling of the High Court of Adamawa
State in Suit No. ADSY/1/2014: Chief Godwin Omenaka v.
Adamawa State Government & Anor delivered on
14/10/2015 by Ambrose D. Mammadi J., wherein it made a
Garnishee Order Absolute against the Appellant is hereby
set aside. The Appellant/Garnishee is hereby discharged.
There shall be no order as to cost.
TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of
reading in draft the lead Judgment just delivered by my
learned brother Biobele Abraham Georgewill, J.C.A.
His Lordship characteristically dealt with all the live issues
that call for determination in this appeal and rightly
resolved same in favour of the Appellant. I too allow the
appeal and abide by all the consequential orders therein
contained.
JUMMAI HANNATU SANEKY, J.C.A.: I agree.
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