IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

 

BEFORE HIS LORDSHIP: HON. JUSTICE O.O. AROWOSEGBE

 

DATE: 23RD FEBRUARY 2018                  

 

SUIT NO. NICN/OW/59/2014

 

BETWEEN:

CHIEF IKEDI OHAKIM………………CLAIMANT/APPLICANT/RESPONDENT

                                                        

                                                      

AND

  1. IMO STATE GOVERNMENT JUDGMENT         
  2. GOVERNOR OF IMO STATE                               DEBTORS/                                                                  
  3. ATTORNEY-GENERAL OF IMO STATE                 APPLICANTS              
  4. ACCOUNTANT-GENERAL OF IMO STATE

 

AND

  1. ACCESS BANK PLC
  2. DIAMOND BANK PLC
  3. FIRST BANK
  4. FIRST MONUMENT BANK PLC GARNISHEES/
  5. SKYE BANK PLC RESPONDENTS
  6. UNITED BANK FOR AFRICAL PLC
  7. UNION BANK PLC
  8. ZENITH BANK PLC

                                                                                                                                                                   

                                                                                   

 

                                                                              

REPRESENTATIONS:

  1. C. OHAKWE FOR THE JUDGMENT CREDITOR
  2. SHARON ANYADUBA FOR THE JUDGMENT DEBTORS/APPLICANTS
  3. STELLA OWU FOR THE 2ND & 6TH GARNISHEES
  4. N. UGWU FOR THE 3RD & 8TH GARNISHEES, AND ALSO HELD THE BRIEF ENYI CHINAKA FOR THE 7TH GARNISHEE

 

RULING

A decree nisi was granted on 31/10/17 to enforce the judgment of this Court delivered in this suit on 24/05/16. The garnishees were ordered in the decree nisi to show causes on the 5th December 2017 why the order nisi should not be made absolute. It is against this order nisi that the judgment debtor/applicant brought the application dated 5th December 2017and filed 8th December 2017, asking the Court to set aside the order nisi. The grounds of the application are as listed hereunder:

  1. The Judgment Debtors/Applicants filed a motion for leave to appeal against the judgment of this Honourable court [sic] delivered on the 24th day of May, 2016 together with a proposed notice of appeal to the court of appeal [sic].
  2. The Judgment Debtors/Applicants also filed a motion for stay of execution of the judgment of this Honourable court [sic] delivered on the 24th day of May, 2016, also at the court [sic] of Appeal.
  3. Both motions are still pending and are yet to be determined.
  4. If this application is not granted and garnishee absolute made in this case, it will render nugatory the decision of the Court of Appeal and put the Judgment Debtors/Applicants in a situation of complete helplessness.
  5. The Judgment Creditor did not get the consent of the Honourable Attorney-General before he sought to levy execution of the said judgment contrary to law.
  6. The Applicants were not involved in the computation of the judgment sum and are not aware how the Judgment Creditor/Respondent arrived at the said sum.

 

Against the above application, the judgment creditor filed a Counter Affidavit on the 9th January 2018. This application was moved on the 5th February 2018 and the judgment creditor/respondent also replied the same date. Let me now review the addresses filed in respect of this application. I start with the address of the judgment debtors/applicants’ counsel. In arguing this written address, the learned counsel to the applicants: I.I. AMADI [ASSISTANT DIRECTOR, CIVIL LITIGATION, IMO STATE], who settled the written address, formulated a lone issue, to wit:

Whether this Honourable Court can grant this application in the circumstance. [sic]

 

          Counsel started by listing the conditions that must be satisfied before an application to set aside a garnishee order nisi could be granted, and cited Nigerian Breweries Plc v. Dumuje & Anor (2016) 8 NWLR (Pt. 1515) 536 at 616, paras. E-H as the authority for these conditions precedent. Counsel submitted that there is a subsisting appeal and motion for stay of execution in respect of the judgment in issue as showed in paragraphs 6 and 7(f) and exhibits MOJ2 and MOJ3 of the affidavit in support of the application. Counsel argued that Nigerian Breweries Plc v. Dumuje [supra] held that, by virtue of Order VII, Rule 7(1) of the Judgments (Enforcement) Rules [JER], execution against the garnishee be commenced by writ of execution, and that for this reason, it follows that garnishee proceedings is one of the forms of execution of judgment and as such, a court cannot hide under the banner that garnishee proceedings is an independent proceeding which does not require the attention of the judgment debtor, to impose a fait accompli on the appellate court. Counsel submitted that by virtue of CBN v. Afribank & Ors cited in Enforcement and Judgments by Afe Babalola, once there is a Notice of Appeal and Motion for Stay of Execution, the court would not proceed with the garnishee proceedings. On the basis of the forgoing, counsel urged the Court to set aside the order nisi already made.

          Counsel also submitted that since the judgment sum is in contention, both the judgment creditor and judgment debtor must jointly compute and agree on the judgment sum and since the judgment debtors were not carried along in computing it and hence, not knowing how the judgment creditor arrived at the computation as deposed to in paragraph 7(i), (k) & (l) of their affidavit, the Court is robbed of jurisdiction to enforce the judgment. On this, counsel also cited Nigerian Breweries Plc v. Dumuje [supra]. Counsel also submitted that because the consent of the Attorney-General was not sought and obtained before the garnishee proceedings were initiated, the garnishee proceedings are incurably bad by virtue of section 84(1) of the Sheriffs and Civil Process Act [SCPA] and the authorities of Federal Government of Nigeria v. Interstella Communications Ltd (2015) 9 NWLR (Pt. 1463) 1 at 36-37, paras. H-A and Onjewu v. Kogi State Ministry of Commerce & Industry (2003) 10 NWLR (Pt. 872) 41. On the basis of the foregoing, counsel therefore urged the Court to set aside the order nisi and dismiss the application for order absolute. Thus, counsel ended the arguments canvassed for the application. Let me now move to the arguments against the application.

          In the written address titled “Written Address in Opposition to Motion”, counsel to the judgment creditor/respondent, the learned silk: K.C.O. NJEMANZE, SAN, distilled two issues for the determination of the application. They are:

  • Whether the application for discharge of the garnishee order nisi filed by the Judgment Debtor is competent. [sic]
  • Whether the Judgment Debtors have made out a case for the discharge of the garnishee order nisi. [sic]

 

The two issues were argued together. The learned silk started by submitting that garnishee proceeding is a separate proceeding between the judgment creditor and the garnishee, notwithstanding the fact that it flows from the judgment that pronounced the debt sought to be garnisheed. On this, the learned silk referred to Denton-West v. Muoma (2008) 6 NWLR (Pt. 1083) 418 at 442. The learned silk argued that as a result, the judgment debtor is a total stranger to the proceedings and could therefore not be heard. On this, the learned silk cited UBA PLC v. Ekanem (2010) 6 NWLR (Pt. 1190) 207 at 226; and NITEL PLC v. I.C.I.C. (Directory Publishers) Ltd (2009) 16 NWLR (Pt. 1167) 356. Counsel submitted that since it is the judgment debtor that has applied for the setting aside, the application is therefore incompetent.

The learned silk further argued that notwithstanding the pendency of motion for stay of execution, garnishee proceedings, being an auxiliary means of enforcing judgment, could still go on. On this, the learned silk cited Purification Tech (Nig) Ltd v. AG Lagos State (supra) and Denton-West v. Muoma (supra). The erudite silk also submitted that an appeal does not operate as stay of execution. Counsel argued that there is an unchallenged affidavit evidence that the judgment debtor did not seek and obtain the leave of court to file the appeal in issue, it follows that there was no valid appeal to stop the Court from going on with the garnishee proceedings. The learned silk also argued that as at 31/10/17 when the order nisi was granted, the applicants had no pending application for stay of execution and no application for leave to appeal in any court hence, the motion for stay of execution and the application for leave to appeal were filed more than 30 days after the grant of the decree nisi and; since appeal does not operate as stay, the judgment creditor could not be stopped from enforcing the judgment. The learned silk submitted that the facts of the authority of Nigerian Breweries Plc v. Dumuje (2016) 8 NWLR (Pt. 1515) 536 relied on by the judgment debtors/applicants are distinguishable from the facts of the case at hand and as such, the authority is not relevant.

The learned silk then moved to the contention that it was necessary to obtain the consent of the Attorney-General by virtue of section 84 of the SCPA and countered that the provisions of the said section 84 of the SPCA are unconstitutional by virtue of sections 6(6)(b), 36(1) 272(1) of the 1999 Constitution; and that even if constitutional, they are inapplicable to the monies in the custody of commercial banks, the commercial banks, being not public officers. On this the learned silk cited Ogujiofor v. Governor of Imo State & Ors NICN/OW/18/2013, an unreported decision of this Court, delivered on 09/01/17 and other cases decided by this Court. The learned silk contended that any provision of law like section 84 of the SCPA that tends to prevent access to court is void. The learned silk cited Adediran v. Interland Transport Ltd (1991) 9 NWLR (Pt. 214) 155, Bakare v. AG Federation (1990) 5 NWLR (Pt. 152); Ransome Kuti v. AG Federation (1985) 2 NWLR (Pt. 6) 211 and Enforcement of Judgment by Afe Babalola at 118-121. The silk submitted that since the object of section 84 of the SCPA is to preclude a judgment creditor from enforcing the judgment in his favour until the consent of the Attorney-General is obtained, the section therefore constitutes an impediment on the right of the judgment creditor to execute the judgment, and therefore repugnant and void.

The learned silk submitted that since the applicants have failed to show that the order nisi was obtained by fraud or deceit or made ultra vires the Court and thus making it a nullity, this Court lacks the jurisdiction to set it aside. The silk cited Tas Industries Ltd v. FBN (No. 1) (2012) 14 NWLR (Pt. 1320) 326, Dingyadi v. INEC (2011) 10 NWLR (Pt. 1255) 347, Ugba v. Suswan (2014) 14 NWLR (Pt. 1427) 264. Thus ended the written address in opposition to the application.

However, in adumbration, the learned silk cited the Supreme Court’s recent decision in CBN v. Interstella Communications Ltd & Ors. SC 500/2014 decided 15/12/17, on the fact that the consent of the Attorney-General is not necessary before a court’s judgment could be enforced against government.

In view of the fact that the competency to countenance further proceedings on the garnishee application is dependent on the decision on the application to set aside the decree nisi, I shall proceed to deal with the resolution of this application first before turning to a consideration of the proceedings for order absolute, if need be. In doing this, I shall adopt the concise and apposite issue formulated by counsel to the applicant, I.I. AMADI [ASSISTANT DIRECTOR CIVIL LITIGATION, IMO STATE], to wit:

Whether this Honourable Court can grant this application in the circumstance?

 

          The learned Assistant Director of Civil Litigation, Imo State, argued in essence, that since the judgment debtors were not involved in the computation of the judgment debt, since there was an application for leave to appeal and a motion for stay of execution filed at the Court of Appeal, and because the consent of the Attorney-General was not obtained before the decree nisi was obtained, and because the judgment creditor did not involve the judgment debtor in the computation of the judgment sum, the garnishee proceeding is liable to be set aside. The learned silk has countered this argument by saying that the garnishee proceedings predated the application for leave to appeal and the motion for stay of execution and as such, could not be set aside, and that, the garnishee proceedings, being separate, could not be stopped by an appeal nor motion for stay of execution and that, the judgment debtor is a mere onlooker to the proceedings; and that, section 84 of the SCPA only protects monies kept in the custody of public officers and since the commercial banks garnisheed are not public officers, the section is inapplicable to the case at hand and more so, the section is unconstitutional and liable to be declared null and void.

          Let me state that it is a misconception to argue that the garnishee nisi is liable to be set aside simply because there is an application for leave to appeal and a motion for stay of execution. Why do I say this? This is because the appellate courts have consistently showed that once a decision emanates from a court of competent jurisdiction and the decision was not obtained by fraud or a complete nullity, such that the very court that gave the decision could be moved to set it aside, the only remedy open, is for the aggrieved person to appeal the decision and not to call on the court that gave the decision to set it aside – see Purification Witt and Busch Limited v. Dale Power Systems Plc (2007) LPELR-3499 (SC) 23-24, paras. G-C, where the Supreme Court held:

It is now settled firstly, that a judgment or order of a court of competent jurisdiction, remains valid and effective, unless it is set aside by an appeal court or by the lower court itself if it found that it acted without jurisdiction.  

 

It has not been shown that this Court lacks jurisdiction to grant the decree nisi neither has it been shown that the decree nisi was obtained by fraud or misinformation, it is therefore misconceived to ask the Court to set it aside simply because an application for leave to appeal and motion for stay of execution are filed at the Court of Appeal. These applications, which were filed 4/12/17, were not in existence at the time the decree nisi was granted on 31/10/17. Therefore, the issue of imposing a fait accompli on the Court of Appeal does not arise in the instant case where the decree nisi was obtained long before the application for leave to appeal and the motion for stay of execution were filed. Therefore, the option really opened to the judgment debtors/applicants is to appeal against the decision of the Court granting the decree nisi and not to ask that it be set-aside in the subsisting circumstance.

Regarding the contention on section 84 of the Sheriff and Civil Process Act let me to refer to a decision of this Court in Suit No. NICN/ABJ/397M/2015: TPR Oogwu Amos (EX) & 1 Or. v. First Bank & Ors. [delivered on 23rd April, 2015] where it was held at pp. 8 – 9, that section 84 of the Sheriffs and Civil Process Act is null and void:

The Court of Appeal held that because section 84 was merely procedural it does not affect the provisions of the Constitution, but as has been shown, the Supreme Court has clearly held that the Petition of Rights in its entirety, which it held is equally procedural, are no longer enforceable in Nigeria. Section 84 being an offshoot of the petition of right, it follows that, all the Court of Appeal cases holding that section 84 of the Sheriffs and Civil Process Act are inviolate conflict with the Supreme Court’s decisions in Ransome-Kuti’s case [supra] and Bakare’s case [supra]. By the principle of stare decisis, I am bound by the decision of the Supreme Court. Consequently, I hold that section 84 of the Sheriffs and Civil Process Act conflicts with sections 6, 254C, and 287 of the 1999 Constitution.

         

On the basis of the above holding, I entirely agree with the submission of the learned silk that section 84 of the SPCA is unconstitutional and therefore null and void and of no effect absolutely.

          Let me now move to the contention that because the judgment debtors were not involved in the computation of the judgment debt, this Court’s jurisdiction to entertain the garnishee proceedings is affected. I observed in paragraph 5 of the affidavit in support of the application for decree nisi that, it was deposed that counsel to the judgment creditor wrote the learned Attorney-General of Imo State intimating him with the judgment of this Court in issue and demanding immediate compliance by paying the judgment debt. In law, the Attorney-General is the Chief law officer of the State, to who is normally sued on behalf of government and served with processes meant for government in civil causes. Serving the letters of demand on the Attorney-General of Imo State was therefore service on the judgment debtors/applicants. Exhibits A and B, which depict how the computed sum was arrived at were also attached to this affidavit by virtue of the said paragraph 5 thereto. It was at the failure of the learned Attorney-General of Imo State to honour this letter of demand that the judgment creditor applied for order nisi, which was accordingly granted.

Now, I wonder the reason for the contention that the judgment debtors/applicants were not involved in the computation leading to the judgment sum garnished. What else did the learned counsel to the judgment debtors/applicants expect the judgment creditor to do? If the judgment debtors/applicants had responded to the demand for the judgment debt, it would have computed, by themselves, what they believed the judgment debt ought to be and when the computed figure by the judgment creditor got to them, they would have reacted by stating their own version of the computation if they did not agree with the computation done by the judgment creditor. Neither of these they did. How can they now complain that they were not involved in the computation of the judgment debt? Let me state that, it is even the duty of the judgment debtors to comply with the judgments of court without promptings. The judgment debtors/applicants in this instance failed to comply on their own volition, and they are now complaining that calculation of the judgment sum was done without their input. Bear in mind that this was done after repeated written demands were not replied. In In-Time Connection Limited v. Ichie (2009) LPELR-8772 (CA) 20, paras. D-G, the Court of Appeal held, and I quote:

The law espoused in JOE IGA V. CHIEF EZEKIEL AMAKRI (1976) 11 SC 1; GWANI V. EBULE (1990) 5 NWLR [pt. (sic) 149] 201; VASWANI V. JOHNSON [2000] 11 NWLR [pt. (sic) 582 and recently by this court [sic] in unreported OIL GAS EXPORT FREE TRADE AUTHORITY V. DR. T.C. OSANKPO [CA/PH/366/200S [sic] of 20th January, 2009] is that where a creditor writes a demand letter which the supposed debtor fails to react to the silence of the latter leads to presumption of admission by conduct.

 

On the authority of the above case, I hold that it is too late in the day for the judgment debtors/applicants to challenge the computation of the judgment sum. This is even more so, in that, up till the present moment, the judgment debtors/applicants have yet to come up with their own computation. It should be noted that the judgment sum involved is a liquidated debt, which could be arrived at by simple arithmetic. Arising from the above is that, the decree nisi granted remains valid and subsisting and not liable to be set aside even in the face of not involving the judgment debtors/applicants in the computation of the judgment sum attached.

I now move to the contentions whether the judgment debtors/applicants are necessary parties to garnishee proceedings and whether the garnishee proceedings is separate from all other forms of execution of judgment. My take on this is that, the judgment debtors/applicants are and that garnishee proceedings are just another means of enforcement of judgments and not separate but are sui generis in the applicable rules, more especially, at the stage of decree nisi but take on the normal form of execution of judgment or enforcement of judgment at the decree absolute stage. I rely on Nigerian Breweries PLC v. Dumuje & Anor (2015) LPELR-25583 (CA) 157-167, paras. B- C and Stanbic IBTC Bank v. Long Term Global Capital & Ors. (2016) LPELR-40517 (CA) 24-32, paras. A-A, which are the latest authorities on this question, and in which, the Court of Appeal reversed itself and its long line of authorities to the contrary.

Having reached this stage, it becomes apposite to determine the fate of the proceedings relating to the order absolute. Can the Court continue with the proceedings in view of the extant application for leave to appeal lodged at the Court of Appeal and the motion for stay of execution also lodged at the Court of Appeal? In answering the posers, let me observe preliminarily that, there was an earlier notice of appeal filed in this case, which was struck out on 23/3/2017 by the Court of Appeal, Owerri Division, for want of diligent prosecution. I observed too, in respect of the present application for leave to appeal, that the applicants have failed to compile the record of appeal within the stipulated 21 days as provided for in Order 64, Rule 9 of the NICN Rules. It also to be noted that the Court of Appeal Rules in Order 8, Rules 1-4, make it abundantly clear that within six days, records of appeal must be transmitted by the Registrar of the Court below to the Court of Appeal, failing which the appellant must compile the record personally. I cannot find anywhere where it is even indicated in the affidavits supporting the applications that compilation of the records of appeal have been duly applied for at the Registry of this Court. I also take note of the fact that the present application for leave to appeal filed 04/12/17 was not filed until more than 8 months after the initial application was struck out for want of diligent prosecution on 23/3/17; and that, it was only filed after the decree nisi was granted by this Court. Though, I take note that the application for stay of execution is not filed in this Court but at the Court of Appeal, nevertheless, the implication of the behavior of the applicants herein is that the real object behind this present application is to waste time and delay the execution of the judgment of this Court.

The rules of this Court have envisaged this type of ploy and ably provided for it. Order 64, Rule 8(2) provides that: “Notwithstanding anything to the contrary, mere filing of application for stay shall not operate as stay of proceedings or stay of execution”. Rule 8(3)(a)&(b) further provide that, “Futhermore [sic], the mere filing of an application simplicita shall not be sufficient for the Court to grant a- (a) stay of execution of the judgment of the Court or; (b) stay of proceedings before the Court.” The above rules are complemented by the provisions of section 47 of the National Industrial Court Act, 2006, [NICA] which provide:

Where permitted by this Act or any other Act of the National Assembly, an appeal to the Court of Appeal from the decision of the Court shall not operate as a stay of execution but the Court may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with Rules of Court.

 

Thus, section 47 of the NICA validates the rules of this Court as relate to appeals and stay of execution or proceedings. In this wise, it follows that notwithstanding the existence of the application for leave to appeal and application for stay of execution lodged at the Court of Appeal, this Court can continue with the proceedings on garnishee absolute and make any necessary order, as, in its opinion, would meet the justice of the case. That this is the correct path to tread is shown by section 17 of the Court of Appeal Act, which provides that:

An appeal under this part of this Act shall not operate as stay of execution, but the Court of Appeal may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with rules of court.

 

The essence of the two provisions and rules of court cited is that the decision that best safeguards the interest of the parties must be given prime consideration in such instance. It follows that the Court must continue with the garnishee proceedings and that it must consider the merit of the application for order absolute therein; and may grant same, subject to ensuring the interests of all parties involved are well catered for. I now proceed to consider the application for decree absolute on its merits by examining the affidavits to show cause filed by the garnishees and the opposing affidavits by the judgment creditor to determine the feasibility or otherwise of making order absolute against the garnishees in their individual rights.

The 1st garnishee filed on 5th December 2017 [p. 58-74]. The 2nd garnishee filed on 4th December 2017 [p. 75-92]. The 2nd garnishee also filed a Further Affidavit on 16th January 2018 to which was attached a written address [p. 345-351]. The 2nd garnishee still went further to file a Further Further Affidavit on 8th February 2018 [p. 396-398]: that is, after the conclusion of hearing on the garnishee proceedings. The 3rd garnishee filed on 30th November 2017 [p. 93-110]. The 4th garnishee filed on 15th November 2017 [p. 111-115]. 5th garnishee filed on 5th December 2017 [p. 116-130]. 6th garnishee filed 4th December 2017 [p. 131-162]. 8th garnishee filed on 30th November 2017 [p. 163-211]. The 6th garnishee [mistakenly tagged 7th garnishee] filed on 11th January 2018 to which was attached a written address [p. 356-383].  The 7th garnishee only filed on 22nd February 2018: that is, after the ruling had been reserved on the garnishing proceedings.

The judgment creditor reacted to the above affidavits filed by the garnishees [except the two filed after ruling was reserved] by filing two further affidavits. The first was filed on 09/01/18 with a written address titled, “Replies on Points of Law to the Written Submissions of the Garnishes”, attached, while the second titled, “Further Affidavit of Judgment Creditor No. 2” was filed 15/01/18. Let me now summarise the written addresses in respect of the affidavits to show cause and the one countering them. Thereafter, I would review the affidavits without written addresses as issues concerning them arise.

In the written address filed by the 2nd Garnishee, counsel to the 2nd garnishee: CHIEF H.N. DUROHA stated that the 2nd garnishee in its affidavit disclosed four accounts of the judgment debtors as specified in the order nisi. Counsel submitted that when the judgment creditor filed a Further Affidavit on 9/1/18, the 2nd garnishee reacted by filing a Further Affidavit of 10 paragraphs to which was annexed Statement of Account No. 0046794788 in the name of BIR Tama Account as Exhibit DB7. Counsel thereafter sought leave of court to use the said affidavit. Leave was granted as prayed. Counsel thereafter went on to formulate an issue for the determination of the affidavit to show cause, to wit: “Whether 2nd garnishee suppressed the existence of judgment creditor’s account in the circumstance of these garnishee proceedings?”

In arguing this issue, the learned counsel to the 2nd garnishee, CHIEF H.N. DUROHA, argued that arising from sections 83-92 of the SCPA and Order VIII the JER, the fulcrum of search for accounts by the garnishee is the data supplied by the judgment creditor as contained in the order nisi and no more. Counsel submitted that this is more so in this era of search by computer where the computer merely searches the names given it in the data base of the bank throughout the country; that under this situation, one branch Manager might not know that a search on customers domiciled in its branch had been conducted. Counsel submitted that arising from the foregoing, whereby a customer cleverly codes its identity such that the search parameter would not reveal its identity, the garnishee couldn’t be blamed.

He contended that the garnishee would be exonerated in law since a diligent search could not reveal the identity. Counsel argued that since the judgment creditor initially gave the names of the judgment debtors as the search parameters and not the number, the search was based on this and when later the judgment creditor gave the account number, the subsequent search was based on the supplied account number, which unearthed another account belonging to the judgment debtor. Counsel contended that, as is manifest, the name “BIR Tama Account” used in the account unearthed later is quite different from the names supplied by the judgment creditor in the order nisi, and as such, computer could not have marched this different name with the names supplied. Counsel subsequently contended that it is the duty of the judgment creditor to supply the specific accounts to be garnished and not to lay ambush for an innocent error on the part of the garnishee in detecting an account cleverly cloned in a name not connected with the government. Thus, counsel ended the address. I now move to the written address filed by the 6th garnishee [erroneously tagged 7th].

In the written address settled also by CHIEF H.N. DUROHA, the learned counsel formulated a lone issue for determination of the affidavit to show cause, to wit: “Whether this garnishee ought to co-exist with the earlier pending ones over the same accounts of judgment debtors?” In arguing the address, counsel submitted that sections 83-92 of the SCPA and Order VIII of the JER regulate garnishee proceedings. Counsel submitted that where, as in the instant case, the garnishee filed an affidavit showing competing equities, the Court most likely would discharge the garnishee. Counsel submitted that exhibits UBA7-9 attached to the affidavits are valid and subsisting orders of the High Court, Imo State and NIC in respect of judgment debtors’ accounts with the 6th garnishee [erroneously tagged 7th garnishee]. Counsel submitted further that in the cases of Exhibits UBA7 and UBA9, the Court adjourned for further arguments. Counsel submitted that this meant that no person or any other court should take any action on Exhibits UBA1-6 that would throw a fait accompli on the Court: in essence, that there are prior equities on the accounts. Counsel cited Ebebi & Ors. v. Denwigwe & 7 Ors. (2011) LPELR-4909 (CA) 57-60, PARAS. C-F and Safejo v. Ogunleye (2008) ALL FWLR (PT. 409) 550 AT 551-552 to buttress the point canvassed.

Counsel submitted that although, the above authorities dealt with issues of stay of execution, the principles are applicable to the issue of preservation of the res for the sake of the person who acquired a prior equity on it. Counsel submitted that the only way by which the Court could preserve the res for the prior equity already established in other courts is by discharging the 6th garnishee. Counsel submitted that it was not good law that a garnishor should seek to take advantage of monies in an account when other courts had earlier indicated their interests on the said account.

 Counsel argued further that, exhibits UBA7-9, being three orders issued by two different courts of concurrent jurisdiction over the same accounts of the judgment debtors in this case with the 6th garnishee, together with the order of this Court making four orders, gave four competing orders of equal status, and that as such, exhibits UBA7-9 would take precedent over the order of this Court because, they are subsisting orders of courts yet to be set aside, since the law is that when equities are equal, the first in time prevails. On this line of reasoning, counsel referred the Court to Daghum v. Andzenge (2007) ALL FWLR (Pt. 385) 499 and Pate v. Muhammed (2016) LPELR-41175 (CA) 41-43, paras. F-E.

Counsel submitted further that the 6th garnishee ought to be discharged because it has raised a complete defence to the garnishee action by deposing to the existence of prior liens on the accounts of the judgment debtors with it in paragraph 12 of the affidavit to show cause and exhibit UBA7-9. On this, counsel cited Zenith Bank PLC v. Omenaka (2016) LPELR-40327 (CA) 24-26, paras. F-A. On this note, counsel ended by urging the Court to discharge the 6th garnishee. Let me now move to the address of the judgment creditor in rebuttal of the addresses of the garnishees.

In the address settled by the learned K.C.O. NJEMANZE, SAN, titled “Replies on Points of Law to Written Submissions of the Garnishees”, the learned silk started by saying it is the law that a garnishee is bound to make full and frank disclosure of facts concerning the accounts of or credit status of judgment debtors. On this, the learned silk cited Oceanic Bank Plc v. Oladepo (2013) 3 WRN 74, another unreported decision of the Court of Appeal in Appeal No. CA/OW/386/2014: The Governor of Imo State & Ors. v. Ogoh & Ors. delivered 13/11/2015, Citizen International Bank Ltd v. SCOA Nigeria Ltd (2006) ALL FWLR (Pt. 323) 1680, and GTB Plc v. Innoson Nig. Ltd (2017) 16 NWLR (Pt. 1591) 181 at 206. The learned silk submitted that the garnishees in their affidavits did not show cause why the decree nisi should not be made absolute. The learned silk also argued that the affidavits filed by the garnishees offended the Evidence Act and should be struck out [but unfortunately did not say how]. The silk also argued that the affidavits did not contain the material entries and that the purported statements of account were worthless [but did not tell the court what the material entries were supposed to be].

The learned silk went further to argue that the garnishees suppressed the accounts of the Judgment debtors as the various accounts maintained by the judgment debtors with the banks were not disclosed. Counsel argued that in the Further Affidavit filed by the judgment creditors, further accounts maintained by the judgment debtors were revealed, which were suppressed by the garnishees. The learned silk argued that, arising from this fact, the garnishees could not be said to have shown cause as ordered by this Court. The learned silk urged the Court to invoke the provisions of section 167(d) of the Evidence Act that, if accounts of the judgment debtors suppressed were produced, the contents would be unfavourable to the garnishees. The learned silk further urged the Court to hold that the intention of the garnishees is to deceive the Court and subvert the course of justice. The learned silk argued that the garnishees having failed to disclose as ordered by the Court, the Court ought to proceed under section 86 of the SCPA to make the order nisi absolute. The learned silk thereafter cited the unreported decision of this Court in Suit No. NICN/OW/18/2013: Ogujiofor & Ors. v. Governor of Imo State & Ors. delivered on 09/1/17 to buttress his submissions.  

The learned silk finally urged the Court to make the order nisi absolute since the garnishees have failed to make disclosure as ordered by the Court. In adumbration on the 5th February 2018, the learned silk admitted that the 1st garnishee made full disclosure and that therefore, the Court could not be urged to make order absolute against it.

Now on the 5th December 2017, L.A. NJEMANZE, who initially appeared to move the Court on the order absolute, submitted that, since the 3rd garnishee at paras. 11, 13, 15, and 17 made some admissions in their affidavit to show cause, and by that, showed cause why they could not pay the entire debt, the Court is urged to make the order absolute to the extent of their admission. J.I. OGAMBA, who appeared for the 3rd and 8th garnishees on the same 5th December 2018, urged the Court to make order absolute on the 3rd and 8th garnishees and that at the same time they be discharged, since they have made full disclosures as ordered by the Court.

On the 5th February 2018, after the address of the learned silk, E.C. ORISAKWE, counsel to the 1st garnishee argued that the 1st garnishee having made full disclosure as required by law, and which the learned silk for the judgment creditor had acknowledged, the 1st garnishee is entitled to be discharged. Thereafter, it was the turn of CHIEF H.N. DUROHA, of counsel, to the 2nd and 6th garnishees [Diamond Bank and UBA respectively]. Counsel stated that they filed their first affidavit on 04/12/17 and the second on 16/01/18. Counsel stated that when the judgment creditor served him with the Further Affidavit No. 2, they filed another Further Affidavit 02 on 29/01/18 and annexed to it a written address. Counsel adopted the said written address, and urged the Court to discharge the 6th and 2nd garnishees. Thereafter, it was the turn of J.I. OGAMBA, of counsel to the 3rd and 8th garnishees. Counsel submitted that the 3rd garnishee made frank and full disclosure in paragraph 17 of the affidavit to show cause filed 30/11/17, and urged the Court to discharge the 3rd garnishee. Counsel submitted further that the 8th garnishee filed an affidavit to show cause on 30/11/17, and that the learned silk having failed to join issue with the disclosure made by the 8th garnishee, the Court is thereby urged to discharge the 8th garnishee.

After J.I. Ogamba was C.N. OKAFOR, of counsel to the 4th garnishee. C.N. OKAFOR submitted that the 4th garnishee filed affidavit to show cause on 15/11/17 and that at paragraphs 5 and 6 therein, it disclosed an account that was not in the name of the judgment debtor and thereafter urged the Court to discharge the 4th garnishee. After this, came the turn of J.U. OKOROAFOR, of counsel to the 5th garnishee [Skye Bank]. Counsel stated that on 05/11/17 the 5th garnishee filed an affidavit to show cause. Counsel stated that he was not served the two Further Affidavits of the judgment creditors. Counsel argued that by virtue of sections 133 and 136 of the Evidence Act, the burden of proving that the funds were moved after the decree nisi was served on the 5th garnishee is on the person who asserted it. Counsel went further to state that he would not mind if the bailiff were called to narrate what transpired in the event that the Court decided to make order absolute against the 5th garnishee; otherwise, the Court should discharge the 5th garnishee.

It was at this stage that CHINAKA ANYI announced his appearance for the 7th garnishee. Counsel stated that he was not actually in the matter but had to enter appearance because he was present in Court in respect of other matters for the 7th garnishee, being his client in those other matters, and more so, since no counsel entered appearance for the 7th garnishee. Counsel therefore urged the Court to adjourn the proceedings to enable the 7th garnishee file its affidavit to show cause before the adjourned date. K.C.O. NJEMANZE, SAN, vehemently opposed this application. The learned silk stated that the 7th garnishee was served on 02/11/17 and refused to show cause, and that, under this situation, the best thing for the Court, is to proceed with the application for decree absolute and conclude same, since there is no material placed before the Court to warrant an adjournment.

Thereafter, the learned silk moved to address on points of law. Replying the 5th garnishee, the learned silk argued that the Court placed a very onerous duty on the 5th garnishee when it ordered it to show cause and this requires it to act with utmost good faith. The silk submitted that the burden is therefore on the 5th garnishee to show to the Court that it acted as directed by the Court. The silk argued that it was therefore incumbent on the 5th garnishee to show when the money was paid out and when the order nisi was served on it. The learned silk argued that the 5th garnishee merely said in its entry “funds transferred” but did not say to whom it was transferred; hence, the document failed to comply with the order of the Court. Thus, the learned silk brought his reply on points of law to a halt. The matter was thereafter adjourned till 22nd February 2018 for ruling while the application for adjournment by the learned counsel for the 7th garnishee was refused. However, the ruling could not be delivered as reserved as it was not ready. For this reason, the ruling was further adjourned till today 23rd February 2018: today.

My duty is now to settle the issues connected with the affidavits filed to show cause as revealed by the affidavits themselves and as espoused in the addresses of counsel for and against. The first point I would like to take preliminarily is the Further Further Affidavit filed by the 2nd garnishee on 8th February 2018 after conclusion of hearing on the garnishee proceedings and the Affidavit Showing Cause (Garnishee Order Nisi) on Union Bank Nig. Plc [the 7th Garnishee], which was filed 22/02/18 after the ruling was reserved, in fact on the day the ruling was to be delivered. As regards the one by the 7th garnishee, counsel was able to formally move the Court, being that the ruling was not ready on 22/01/18 and had to be adjourned till today 23rd February 2018. Can the Court take cognizance of these affidavits? Counsel to the 7th garnishee gave reasons why the 7th garnishee filed late. I cannot find these reasons in the affidavit filed by the 7th garnishee and the ipse dixit of counsel cannot amount to evidence. Be that as it may. The Court of Appeal in Nweke & Anor. v. Orji (1989) LPELR-20459 (CA) 8, paras. G-H gave guidelines as to what to do in situations like these, when it held that:

The applicable rule reproduced earlier does not say an affidavit filed after the motion has commenced will not be allowed to be used. I think it must be left to the discretion, in deserving circumstances, of the judge. If a party who intends to use such affidavit is still arguing his motion and the affidavit contains facts that will assists his case or the course of justice, there is hardly any reason, in my view, why it should not be allowed to be used.

 

The issue here is that the Further Further Affidavit of the 2nd Garnishee filed 8th February 2018 was filed three clear days after arguments on the garnishee proceedings have been concluded and ruling reserved; likewise, that of the 7th garnishee. While it may be that the rules of this Court did not limit the number of affidavits that a party can file in respect of an application, the case is a different kettle of fish when arguments have been completed and ruling reserved before a party files an affidavit. The question is: for what purpose are these affidavits filed? It could be seen here that, the purpose of the first affidavit is to supply additional evidence, which, as deposed to in the affidavit, was omitted by error in the original affidavit, while the purpose in the second, is to bring information, which the 7th garnishee had hitherto failed to file on time. I do not think these purposes affect the interest of the judgment creditor, whose grouse is that full disclosure was not made, if at the end, the 2nd and 7th garnishees see reasons and make disclosures before ruling is entered; this must be seen to be in furtherance of compliance with the order of this Court in the decree nisi.

I do not find the affidavits in any way injurious to the main interest of the judgment creditor in the garnishee proceedings, which is the execution of the judgment in his favour; more so, when the affidavits in question revealed the existence of funds that could be garnished in further satisfaction of the judgment debt. I find useful the decision of the Court of Appeal in Aliyu v. Almu (2013) LPELR-21857 (CA) 11-12, paras. G-D, wherein it was stated:

An application to re-open a case which has been closed by both parties and the matter adjourned for filing and adoption of written addresses is no doubt a major interlocutory application. In Nebo v. FCDA (1981) 11 NWLR (Pt. 574) page 480 this Court said inter alia of the principle regulating the re-opening of a case closed thus: “An application by a party to re-open an already closed case is an invitation to the Court to exercise its discretion in his favour in which case the applicant must disclose reasons sufficient to persuade the Court to exercise its discretion in his favour. Some of the reasons the applicant could give include lack of means, mistake, or accident…The Court can still exercise its discretion to re-open a case which has been closed by both parties and the matter adjourned for judgment, if an issue has arisen which no human ingenuity could have foreseen.

 

The Further Further Affidavit by the 2nd garnishee and the new affidavit filed by the 7th garnishee herein are in the nature of application for re-opening of an application adjourned for ruling. The reason given in paragraphs 3-4 of the affidavit of the 2nd garnishee is that it was an inadvertence on the part of the deponent to earlier disclose the account now disclosed. To my mind, this is a sufficient ground to exercise the discretion of the Court in favour of the 2nd garnishee. As for the second affidavit, I take judicial notice of what happened in Court on 5th February 2018. I know that counsel to the 7th garnishee stumbled on the garnishee proceedings on this suit while he came for another case and made spirited efforts to take adjournment to enable him consult with the 7th garnishee and enable it file affidavit to show cause. This adjournment was refused. This affidavit has now been filed. Can the Court still go ahead without looking into the merits of the affidavit and exercise its punitive jurisdiction against the 7th garnishee? I don’t think that is the essence of justice. It would have been another cup of tea, if the 7th garnishee did not file till the ruling was delivered or at the point of delivering the completed ruling. But in this case, the ruling was not ready and reserved till the following day, so the Court still had the opportunity to incorporate the affidavit into its decision. So, issue of arresting the ruling did not arise. Discretion is the watchword.

 

I hereby exercise my discretion to grant leave for 7th applicant to use the affidavit in question. I hereby take cognizance of the Further Further Affidavit of 2nd garnishee filed 8/02/18 and the one filed by the 7th garnishee on 22/02/18. Next, I come to the issue of the 1st, 3rd & 8th garnishees.

 

The learned silk conceded the point that the 1st garnishee [Access Bank] has made full and frank disclosure and that as a result, it be discharged. With regard to the 3rd garnishee [First Bank], L.A. NJEMANZE agreed on 5th December 2017 that it made disclosures in paragraphs 11, 13, 15 & 17 of the affidavit to show cause and urged the Court to make decree absolute to the extent of the admissions made and thereafter discharge it. On the 8th garnishee, counsel argued that since the learned silk did not join issue on the disclosure made by the 8th garnishee, the 8th garnishee is liable to be discharged. This view was not countered in the reply on points of law by the learned silk. It is therefore deemed admitted.

 

Since admissions against interests need no further proof – see Onigbinde v. Olatunji Global Nig. Limited (2015) LPELR-25943 (CA) 19, paras. B-C, the 1st garnishee [Access Bank] is hereby discharged without much ado. I have checked and found that the judgment creditor did not join issue with the 8th garnishee on the affidavit to show cause in the two further affidavits filed. The judgment creditor only joined issue with the 2nd, 5th and 6th garnishees [paras. 3-7 of the Further Affidavit filed 09/01/18]. I have also checked and found that there existed prior liens on the few accounts of the judgment debtors with the 8th garnishee and that the funds are not sufficient to satisfy the liens thereby making no funds available to be attached. I therefore have no hesitation in discharging the 8th garnishee as requested by its counsel. The 8th garnishee is hereby discharged. As regards the 3rd garnishee, no issue is joined with it in the two Further Affidavits of the judgment creditor. I take note of the fact that the judgment creditor has asked the Court to make order absolute with regards to the funds revealed in the affidavits of the 3rd garnishee but kept silent on whether it should be discharged.

I have therefore for the above reason checked the disclosures made to see if they satisfy the requirement of the law. I have found that the credit balances in the two accounts listed in the garnishee order nisi were fully revealed. There being no dispute as to these, I have no reason to continue to keep the 3rd garnishee on the noose of garnishee proceedings. I hereby order that the decree nisi against the 3rd garnishee is made ABSOLUTE to the tune of N76, 373, 213. 59 [Seventy-six million, three hundred and seventy-three thousand, two hundred and thirteen Naira, fifty-nine Kobo]. The money is to be paid to this Court in the name of the Chief Registrar National Industrial Court of Nigeria within 14 days next. Let me now tackle the issues connected with the 2nd, 5th and 6th garnishees on which issues were joined.

Before doing that, let me clear an issue I consider preliminary and germane to all of them. The learned silk has argued clearly that garnishees are under duty to make full and frank disclosures regarding the accounts of the judgment debtors in their coffers, meaning that whether or not these accounts were mentioned in the garnishee order nisi, they must be disclosed. I do not think that is the correct position of the law. My take is that, once the order of Court is specific, the duty of full and frank disclosure of the garnishees starts and ends with details of the accounts specifically attached, and no more. I have checked most of the authorities cited by the learned silk and found that issues arose in relation to accounts specifically attached and on which full and frank disclosures were not made. Even if this were not so, it should be noted that, this Court has copious provisions on garnishee proceedings, and one of these is that, the details of the specific account to be garnisheed must be furnished the Court before the order nisi could be made – see Order 51, Rule 2(h). By this rule, the number of the account to be attached were stated in the order nisi and it would therefore be wrong for the Court to proceed to hold the garnishees liable, if they made full and frank disclosures in relation to the accounts specifically attached, simply because they did not make disclosures in respect of the accounts not specifically attached or given by the judgment creditor. The maxim is that, the specific mention of one thing, excludes those not mentioned – see Ehuwa v. Ondo State Independent Electoral Commission & Ors (2006) LPELR-1056, 20-21, paras. E-C. Me think this maxim is equally applicable to the construction of documents and orders of courts by reason of logical axiom. The rules of this Court make it the duty of the judgment creditor to name the account and the number of the account to be garnisheed. From the common law period, it has been the duty of the garnishee to tell the court that a particular person or institution is indebted to the judgment debtor and that the sum standing to the credit of the judgment debtor in the custody of the bailee or the debtor or trustee to the judgment debtor be attached, otherwise, a court of law would be invited to make an order at large and to engage in speculation. The law does not permit these – see Joe Gold Co. Ltd. & Ors. v. Co-Operative Developmewnt Bank Plc (2003) LPELR-1617 (SC) 25, paras. A-C, where the Supreme Court held, and I quote:

The court cannot be expected to make an order which is uncertain or which is subject to different interpretation as to whether it meets the relief claimed. Nor has a court a duty to engage in any semantics in the order it makes in an attempt to explain what the plaintiff intended to ask for and accordingly grant. The guiding rule is that the court must not grant a party what it has not asked for in clear terms and sufficiently proved.  

 

The judgment creditors listed the accounts to be garnisheed and they were accordingly attached. The duty of frank and full disclosure imposed on the garnishees must be primed against this parameter. In this respect, I agree with the submission of counsel to the garnishees that the garnishees could not be held responsible for not disclosing accounts numbers not furnished the garnishees, especially in this computer era when the operative law is that you garbage in and garbage out. It is the search parameter imputed into the garnishees/banks’ computers that would determine what result is generated.

 

I now come to the 2nd, 5th and 6th garnishees on which the judgment creditors have joined issue. I take note that the 2nd garnishee filed a Further Further Affidavit on the 8th February 2018, which has just been granted cognizance by this Court. In the Further Affidavit filed by the judgment creditor on 09/01/18, at paragraph 6 thereof, another account of the judgment debtor with the 2nd garnishee with Account No. 0046794788(BR) was revealed. The details of the account has been attached from 01-Jan-2018 to 11-Jan-2018 showing a credit balance of N48, 080,431.92 [Forty-Eight Million, Eighty Thousand, Four Hundred and Thirty-One Thousand, Ninety-Two Kobo]. The date reflected covers after the Further Affidavit revealing the account was filed on 09/01/2018. Order absolute is made against the 2nd garnishee in the said sum in account No. 0046794788(BR) of the judgment debtor with the 2nd garnishee, less the minimum credit balance required for the maintenance such an account. The above sum is to be paid into this Court vide the Chief Registrar, National Industrial Court of Nigeria within 14 days next. The 2nd garnishee is conditionally discharged after the payment of this sum but, this is without prejudice to the right of the judgment creditor to dispute the information contained in the affidavit within 7 days next, since he has not had the privilege to react to the affidavit before proceedings on the order absolute was concluded. I have concluded on the 2nd garnishee. I move to the 5th garnishee.

 

The 5th garnishee attached exhibit 2 [paragraph 5(d) of the affidavit to show cause]. My search through the exhibit showed that, in the Imo State IGR Collection Account at Skye Bank on 02/11/17, there was credit balance of N21, 126, 183.22 in the account and that, on this same day, a total sum of N17,000,000.00 in eleven tranches was transferred out of this account to NEFT UBA Federal Poly Nekede, leaving a balance of N5,166,073.28. I found that this account has a prior lien having been previously attached by an order of this Court, Coram Abali, in another garnishee proceedings. It is therefore not available for the present garnishee proceedings. I also observed that an account named “Owerri Capital Dev. Authority” domiciled with the 5th garnishee had credit balance of N112, 105, 377.22 on the 02/11/17 but had N112, 000, 000.00 transferred on this same date without mentioning the account to which it was transferred. I therefore agree with the learned silk that these suspicious transactions on the said account did not satisfy the requirement of frank and full disclosure. I also wish to draw attention to the fact that this account, from the affidavit of the 5th garnishee, has no prior lien on it.

 

The garnishee is therefore adjudged to be hiding something from the Court or playing game with the Court. Whether or not the 5th garnishee was not served with the two further affidavits of the judgment creditor does not relieve the 5th garnishee of the duty to make frank and full disclosure in the accounts on which it itself showed cause. The essence of any affidavit filed by the judgment creditor is to disproof or show any falsehood perpetrated by the garnishee in making full disclosure. With or without this, the garnishee is not relieved of its responsibility to the Court to make full and frank disclosure as ordered. And the Court is also duty bound to examine the affidavit of the garnishee to satisfy itself that it made full and frank disclosure, with or without the inputs of the judgment creditor. This is exactly this issue here. I have examined the affidavit filed by the 5th garnishee and observed that it failed in this regard. The reliance of the counsel to the 5th garnishee, J.U. OKOROAFOR, on sections 133 and 136 of the Evidence Act, is of no avail in that, once an account is garnished under decree nisi, it is the duty of the garnishee to satisfy the court why the order nisi should not be made absolute. This, the 5th garnishee has not done. The 5th garnishee seemed to be engaged in hide and seek game with the Court. I found useful the Court of Appeal’s decision in Oceanic Bank Plc v. Oladepo & Anor (2012) LPELR-19670 (CA) 28, paras. C-F, where it was held that:

 

It must be stated also that where, as in this case, a garnishee order nisi is made against a Garnishee and served as established in this appeal, the onus is no longer on the Garnishor to place materials before the court to enable the court to make the Garnishee order absolute. The onus is on the Garnishee to show cause why the order nisi should not be made absolute. If the Garnishee raised points of law or disputes militating against the attachment of the monies of the judgment debtor in the Garnishee’s possession then, a dispute worthy of trial or investigation in the Garnishee proceeding will arise for trial or investigation by trial Judge.  

 

However, I take note of the fact that the counsel to the 5th garnishee [J.U. OKOROAFOR] urged the Court to invite the bailiffs to state what happened on the day in question, if the Court is mindful to make order absolute against it. The counsel failed to address the Court on the questions begging for answers and started chasing an irrelevant issue. The questions are simply: why did the bank fail to disclose the persons to whom the fund was allegedly transferred; and was this fund transferred at all? It is after satisfactorily answering these questions that the issue of when exactly the monies were transferred would become relevant. If the garnishee failed to answer these questions apparent on the face of its affidavit and the supposed Statement of Accounts attached, then, it must be held liable for hiding information from the Court in order to evade a duty placed on it by law, and must be ready to face the consequence. I can therefore not find the relevance of the counsel’s call for viva voce testimony by the bailiffs at this stage.

 

Since the Court requires an explanation as to why the substantial part of the money in the account of the judgment debtors in the custody of the garnishee was transferred in a jiffy the same day the order nisi was served on the bank without stating to whom the fund was transferred: these are gapping holes against the norms in banking practice where transfers from accounts show the transferors and the transferees. The implication of these abnormalities is that, if these pieces of information were produced, they would have been unfavourable to the garnishees; otherwise, the pieces of information normally produced in banking practice would not have strangely been hidden in this instance. This is more so, when the garnishee bank knew the purpose for which the account was being garnisheed and that, it has a duty to make frank and full disclosure; and rather surprisingly did the exact opposite by suddenly becoming unusually stingy with the pieces of information it routinely gives out in everyday banking practice on Statement of Accounts. It simply means that the money is still in the account and never transferred to anybody, which is why the garnishee bank failed to state to whom it was transferred. Relying on Oceanic Bank Plc v. Oladepo [supra], Governor of Imo State v. Ogoh (supra) and the decision of this Court in Suit No. NICN/OW/18/2013: Ogujiofor & Ors v. Governor of Imo State & Ors. [delivered 09/01/2017], I hereby make order absolute against the 5th garnishee [Skye Bank] to the tune of N112, 000, 000.00, which was allegedly transferred on 02/11/17, the date the order nisi was served on the 5th garnishee. I leave out the other accounts disclosed either because they have no evidence of sufficient funds in them or because they had previously been attached by a prior order of this Court as evidenced in exhibit 1 of the affidavit of the 5th garnishee. This money is to be paid to this Court in the name of the Chief Registrar, National Industrial Court of Nigeria within 14 days next.

 

The argument that the account titled “Owerri Capital Dev. Authority” on which the order absolute is just made, not being a party to this suit, and as such, could not be garnisheed, would not hold water in that, this Court had decided in Suit No. NICN/OW/18/2013: Ogujiofor & Ors v. Governor of Imo State & Ors. [delivered 09/01/2017] that whatever the name by which an account is opened, once it belongs to a department or parastatal of government, the account is attachable as government account. By virtue of section 318 of the 1999 Constitution, “authority” is defined to include government, while “government” is defined to include the government of the federation, or of any state, or of a local government council or of any person who exercises power or authority on its behalf. It is not in doubt that, the word ‘person’ includes both natural and non-natural bodies, like body corporates or corporation soles. Therefore, Owerri Capital Dev. Authority, on whose account a decree absolute is pronounced, is a person by legal fiction that exercises power and authority on behalf of the government of Imo State, and is, as such, part and parcel of the government of Imo State; and its account is therefore attachable, as an account of the Imo State Government.

 

I now come to the 6th garnishee. The 6th garnishee has two affidavits filed to show cause. The first was filed 04/12/17. I found that the total of credit balances in the account have been attached by prior garnishees orders from this Court and the High Court of Imo State, and as such, there appeared to be no funds in the accounts revealed therein to satisfy the debts of the present judgment creditor. However, the 6th garnishee filed another affidavit titled Further Affidavit of 6th Garnishee on the 29th January 2018, after the Further Affidavit of the Judgment creditor titled Further Affidavit of Judgment Creditor No. 2, which was filed 15th January 2018. In the second affidavit of the 6th garnishee, another account was revealed titled M/S BIR-Informal Sector with No. 1020085112 with a credit balance of N44, 790,831.34. The deponent to the affidavit explained that this account was discovered when the judgment creditor furnished the bank with the new details of the account, which were used to search out the account. I think this explanation holds water, in view of my earlier holding that a garnishee could only be held liable if it fails to disclose frank information regarding an account that has been specifically named. I therefore make order absolute to the tune of N44, 790, 831.34 against the 6th garnishee, less the minimum amount required to maintain the account. This sum is to be paid to this Court through the Chief Registrar, National Industrial Court of Nigeria within 14 days next. After the payment, the 6th garnishee is discharged accordingly.

 

I now come to the 7th garnishee. The 7th garnishee furnished information regarding two accounts. These are the two accounts garnisheed by the decree nisi. In the first, a total credit balance of N2, 441, 156.54 is given. In the second, a total credit balance of N6, 383, 084.18 is given. The cumulative total is N8, 824, 240.72. The decree nisi on the total cumulative funds of N8, 824, 240.72 in the two accounts is hereby made absolute, less the minimum balance to maintain the account. The total sum is to be paid over to this Court vide the Chief Registrar, National Industrial Court of Nigeria within 14 days next. The above order is however without prejudice to the right of the judgment creditor to unearth any falsehood or concealment contained in the disclosure within 7 days next since the judgment creditor had no opportunity of scrutinizing the affidavit before ruling was reserved.

 

The last of the garnishees to be treated is the 4th garnishee. No issue was joined with the 4th garnishee. The 4th garnishee had even gone ahead to search for other accounts when it could not find the ones directly attached. I therefore have no reason to doubt that it made full and frank disclosures as required by law; and as shown in the affidavit, no funds are contained in these accounts. Since no issue has been joined with it, the 4th garnishee is accordingly discharged.

 

In all, decree absolute has been made on a cumulative total sum of N290, 068, 717.57 [Two-Hundred and Ninety Million, Sixty-Eight Thousand, Seven-Hundred and Seventeen Naira, Fifty-Seven Kobo] less the minimum amounts required to maintain the various accounts in issue. This leaves a balance of N192, 441, 387.65 [One Hundred and Ninety-Two Million, Four Hundred and Forty-One Thousand, Three Hundred and Eighty-Seven Naira, Sixty-Five Kobo] unrealized. The judgment creditor is therefore at liberty to continue to explore means of realizing the remaining judgment debt from the judgment debtors.

 

The orders to pay over to the Court through the Chief Registrar, National Industrial Court of Nigeria were made bearing in mind the leave to appeal filed in the matter at the Court of Appeal and the application for stay of execution lodged with the Court of Appeal. Whatever happens at the end of these processes, the judgment sum recovered through this garnishee proceeding is there for the winner to pick. I think this takes care of all shades of interests. That is the essence of justice rooted in the rule of law.  

 

 

…………………………..

O.O. Arowosegbe

PRESIDING JUDGE

Owerri Division, National Industrial Court of Nigeria