GTB PLC v. INCORPORATED TRUSTEES OF THE M.M.M. NIG. & ANOR (2020)

GTB PLC v. INCORPORATED TRUSTEES OF THE M.M.M. NIG. & ANOR

(2020)LCN/14749(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, November 26, 2020

CA/L/41M/2011

RATIO

PROCEEDING: NATURE OF A GARNISHEE PROCEEDING

Now, a garnishee proceeding is one of the means by which the judgment of a Court is enforced. Any debt owed to a judgment debtor by any other person within the jurisdiction of the Court can be recovered by the judgment creditor towards the satisfaction of his judgment by the process known as Attachment of Debts Garnishee Order. See SOKOTO STATE GOVT vs. KAMDAX (NIG) LTD (2004) 9 NWLR (PT 878) 345 at 375 and NIGERIAN BREWERIES PLC vs. DUMUJE (2015) LPELR (25583) 1 at 122. The nature of garnishee proceedings was explicitly stated by Eko, JSC in GTB PLC vs. INNOSON NIGERIA LTD (2017) LPELR (42368) 1 at 8-11 as follows:
“Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. The third party holds the debt or property of the Judgment Debtor. By this process, Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of phrases Legally Defined 3rd Edition Vol.2, pages 313-314 cited by Akintan, JSC, in his concurring judgment in UNION BANK OF NIGERIA PLC. v. BONEY MARCUS INDUSTRIES LTD. (2005) 13 NWLR (Pt.943) 654 at page 666. Lord Denning, MR, in CHOICE INVESTMENT LTD. v. JEROMINIMON (1981) QB 149 at 154-155, gives a simple illustration of garnishee proceeding thus: ‘A creditor is owed 100 pounds by a debtor. The debtor does not pay. The creditor then gets judgment against him for the 100 pounds. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has 150 pounds at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the [judgment creditor] out of the Customer’s pounds 150 – the 100 pounds which he owes to the creditor.’ The Master of the Rolls went on, in the case, to state further: ‘There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay pounds 100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See PRITCHARD V. WESTMINISTER (1969) 1 ALL ER 999 and RAINBOW v. MOORGATE PROPERTIES LTD. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it.’”
See also UBN PLC vs. BONEY MARCUS INDUSTRIES LTD (2005) 13 NWLR (PT. 943) 654 at 666, CITIZENS INTERNATIONAL BANK LTD vs. SCOA NIG. LTD (2006) LPELR (5509) 1 at 6-7, UWAK vs. SAMPSON (2017) 10 NWLR (PT 1574) 491 and UBA PLC vs. OPTION ONE AGRITRADE (NIG) LTD (2018) LPELR (43865) 1 at 14. PER OGAKWU, J.C.A.

GARNISHEE PROCEEDING: ESSENCE OF GARNISHEE PROCEEDINGS

The essence of garnishee proceedings is basically to confirm whether or not the garnishee has funds of the judgment debtor which in this case has been amply demonstrated on the affidavit and exhibits. PER OGAKWU, J.C.A.
DEBT: WHETHER A BANK HAS THE RIGHT TO CONSOLIDATE AND COMBINE ACCOUNTS HELD BY ITS CUSTOMER IN ORDER TO SET OFF ANY DEBT OWED TO IT

Now, it seems trite law that a bank has the right to consolidate and combine accounts held by its customer in order to set off any debt owed to it: JOE GOLDAY CO LTD vs. CO-OPERATIVE DEVELOPMENT BANK PLC (2003) 2 SC 1 at 15-16. PER OGAKWU, J.C.A.

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

GUARANTY TRUST BANK PLC APPELANT(S)

And

1. INCORPORATED TRUSTEES OF THE MEDICAL MISSIONARIES OF MARY (MMM) NIGERIA 2. GLOBE MOTORS HOLDINGS (NIGERIA) LIMITED RESPONDENT(S)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The 1st Respondent sued the 2nd Respondent before the High Court of Lagos State in SUIT NO. LD/114/2003: THE INCORPORATED TRUSTEES OF THE MEDICAL MISSIONARIES OF MARY (MMM) NIGERIA vs. GLOBE MOTORS HOLDINGS (NIG.) LTD. The cause of action was in respect of a Peugeot 306 vehicle which the 1st Respondent purchased from the 2nd Respondent. The 1st Respondent, contending that the vehicle was not of merchantable quality instituted the action claiming sundry reliefs against the 2nd Respondent.

On 23rd October 2003, judgment was entered in favour of the 1st Respondent. Being a monetary judgment, and in order to realise the fruits of the judgment, the 1st Respondent commenced garnishee proceedings against some banks, including the Appellant herein as the 3rd Garnishee. On 5th April 2004, the lower Court made a garnishee order nisi, attaching the monies of the 2nd Respondent with the Garnishee banks to satisfy the judgment debt. In keeping with the prescription of the law, the Appellant filed an affidavit showing cause; in which it disclosed all the accounts of the 2nd Respondent with it and

deposing that the 2nd Respondent was indebted to it and that there were no funds of the 2nd Respondent to attach in satisfaction of the judgment sum.

The Appellant further filed an application seeking, inter alia, an order to set aside the garnishee order nisi. The lower Court dismissed the said application and after considering the affidavit to show cause filed by the Appellant, it proceeded to make the garnishee order absolute, holding that some of the 2nd Respondent’s account were not properly funded, but that there was nothing to show that all, the accounts were consolidated; whereupon the garnishee order was made absolute in respect of the 2nd Respondent’s accounts with credit balances.

The Appellant was dissatisfied with the decision of the lower Court and appealed against the same. The Notice of Appeal was filed on 2nd October, 2012, pursuant to the order of this Court made on 18th September 2012. The chafed decision of the lower Court is at page 71 of the Records, while the Notice of Appeal is at pages 40-42 of the Records.

The Records of Appeal were compiled and transmitted and briefs of argument were filed and exchanged

between the Appellant and the 2nd Respondent only. The 1st Respondent did not file any brief. At the hearing of the appeal, learned counsel for the Appellant and the 2nd Respondent urged the Court to uphold the submissions in their respective briefs of argument in the determination of the appeal. The learned counsel for the 1st Respondent, informed the Court that he had the instructions of the 1st Respondent not to contest the appeal.

The extant Appellant’s Brief is the Amended Appellant’s Brief filed on 10th September, 2019 and deemed as properly filed on 16th September, 2019. The Appellant formulated a sole issue for determination, namely:
“Whether the learned trial Judge was right in making the Order Nisi absolute against the Appellant; ordering it to pay the Judgment sum to the 1st Respondent within 7days despite denial of liability by the Appellant.”

The 2nd Respondent’s brief was filed on 21st February, 2014, but deemed as properly filed on 3rd July, 2017. Order 19 Rule 4 (2) of the Court of Appeal Rules, 2016 [which is in pari materia with Order 18 Rule 4 (2) of the Court of Appeal Rules, 2011] stipulates, inter

alia, that a respondent’s brief shall contain reasons why the appeal ought to be dismissed. In paragraph 6.01 of the 2nd Respondent’s brief it is submitted as follows:
“We urge your lordship to allow this appeal by setting aside the garnishee order absolute made by the learned trial judge in this case on the 21st April, 2005 against the Garnishee/Appellant and discharge the Garnishee/Appellant.”
The 2nd Respondent’s Brief seems to be an abdication of the traditional role of a respondent. Rather than postulate for the appeal to be dismissed as stipulated in the Rules of Court, it advocates for the appeal to be allowed. It is rudimentary law that the traditional role of a respondent to an appeal is to defend the decision appealed against. If a respondent wants to depart from this traditional role by attacking the decision appealed against in any manner, the respondent is obligated by the rules of Court to file a cross appeal. See ADEFULU vs. OYESILE (1989) LPELR (91) 1 at 67-68, OBI vs. INEC (2007) LPELR (24347) 1 at 110, ELIOCHIN (NIG) LTD vs. MBADIWE (1986) 1 NWLR (PT 14) 47, LAFIA LOCAL GOVT vs. THE EXECUTIVE GOVT

NASARAWA STATE (2012) LPELR (20602) 1 at 14 and AGI vs. PDP (2016) LPELR (42578) 1 at 100-101. It offends the law for the 2nd Respondent to depart from this traditional role of a respondent. In the circumstances, I will discountenance the 2nd Respondents’ brief. It will play no further part and get no further mention in this judgment.

I have considered the decision of the lower Court and the grounds of appeal filed vis-a-vis the sole issue distilled by the Appellant; the said issue is idoneous and it would be the lodestar for the consideration of the submissions of the Appellant and determination of this appeal.

The Appellant submits that it deposed in the affidavit showing cause that the 2nd Respondent was indebted to it and that the said deposition was neither contradicted nor contested and so it is deemed as admitted, and the lower Court ought to have utilised the same in arriving at its decision vide AZUH vs. UBN PLC (2004) 14 NWLR (PT 893) 402 at 420. It was stated that the balance in all the 2nd Respondent’s accounts with it were computed to arrive at its indebtedness to the Appellant, thereby showing that the Appellant consolidated

the accounts, set off the debt and exercised its lien on the accounts and the only question ought to be whether the lien was rightly exercised.

It was asserted that a garnishee is entitled to set off any debt due to it from the judgment debtor when an order nisi is served on it. The case of HALE vs. VICTORIA PLUMBING CO. LTD (1966) 2 QB 746, which was cited on page 107 of the book, ‘Enforcement of Judgments’ by Afe Babalola, OFR, SAN was referred to. It was posited that in the affidavit to show cause, the Appellant put in issue the consolidation of the 2nd Respondent’s accounts and exercise of lien on the said accounts; and so the lower Court ought to have conducted a trial to determine whether the lien was rightly exercised. The cases of CO-OPERATIVE DEVELOPMENT BANK PLC vs. JOE GOLDAY CO. LTD (2000) 14 NWLR (PT 688) 506 at 544 and BRITISH & FRENCH BANK LTD vs. OPALEYE (1962) 1 ALL NLR 26 at 28 or (1962) 1 SCNLR 60 at 80 on when accounts can be consolidated and F.I.B. PLC vs. EFFIONG (2010) 16 NWLR (PT 1218) 199 at 207 on right of lien were referred to and it was submitted that since the 2nd Respondent owed the Appellant more than

the amount standing to its credit, the order absolute made by the lower Court was without legal justification.

The Appellant relied on the definition of garnishee in Black’s Law Dictionary, 7th Edition and Section 83 of the Sheriffs and Civil Process Act and opined that a garnishee is a person indebted to a judgment debtor and that the Appellant was not indebted to the 2nd Respondent vide WEMA BANK PLC vs. BRASTEM-STERR (NIG) LTD (2011) 6 NWLR (PT 1242) 58 at 78-79. It was maintained that the Appellant, having denied being indebted to the 2nd Respondent, the lower Court, pursuant to Section 87 of the Sheriffs and Civil Process Act, should have conducted a trial to determine the issue of the liability of the Appellant. The cases of NIGERIA HOTELS LTD vs. NZEKWE (1990) 5 NWLR (PT 149) 187 at 197, STB LTD vs. CONTRACT RESOURCES NIG LTD (2001) 6 NWLR (PT 708) 115 and paragraph 518 at page 231 of Halsbury’s Laws of England, 4th Edition, Volume 10 were called in aid.

The Appellant conclusively submitted that the garnishee order absolute ought to be set aside on appeal for having been made in ignorance of, or disregard of the depositions in the

affidavit showing cause. The case of NITEL PLC vs. I.C.I.C. (DIRECTORY PUBLISHERS) LTD (2009) 16 NWLR (PT 1167) 357 at 388 was cited in support.

RESOLUTION
In the prolegomenon, I traced the genesis of this appeal. Now, a garnishee proceeding is one of the means by which the judgment of a Court is enforced. Any debt owed to a judgment debtor by any other person within the jurisdiction of the Court can be recovered by the judgment creditor towards the satisfaction of his judgment by the process known as Attachment of Debts Garnishee Order. See SOKOTO STATE GOVT vs. KAMDAX (NIG) LTD (2004) 9 NWLR (PT 878) 345 at 375 and NIGERIAN BREWERIES PLC vs. DUMUJE (2015) LPELR (25583) 1 at 122. The nature of garnishee proceedings was explicitly stated by Eko, JSC in GTB PLC vs. INNOSON NIGERIA LTD (2017) LPELR (42368) 1 at 8-11 as follows:
“Let me preface this discourse with a statement on what in law, garnishee proceeding is. It is a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available in execution. The third party holds the debt or property of the

Judgment Debtor. By this process, Court orders the third party to pay direct to the judgment creditor or to the Court the debt due or accruing from him to judgment debtor, as much of it as may be sufficient to satisfy the amount of the judgment debt and the cost of the garnishee proceedings. See Words of phrases Legally Defined 3rd Edition Vol.2, pages 313-314 cited by Akintan, JSC, in his concurring judgment in UNION BANK OF NIGERIA PLC. v. BONEY MARCUS INDUSTRIES LTD. (2005) 13 NWLR (Pt.943) 654 at page 666. Lord Denning, MR, in CHOICE INVESTMENT LTD. v. JEROMINIMON (1981) QB 149 at 154-155, gives a simple illustration of garnishee proceeding thus: ‘A creditor is owed 100 pounds by a debtor. The debtor does not pay. The creditor then gets judgment against him for the 100 pounds. Still the debtor does not pay. The creditor then discovers that the debtor is a customer of a bank and that he has 150 pounds at his bank. The creditor can get a “garnishee” order against the bank by which the bank is required to pay into the Court or direct to the [judgment creditor] out of the Customer’s pounds 150 – the 100 pounds which he owes to the creditor.’ The

Master of the Rolls went on, in the case, to state further: ‘There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means “unless”. It is an order upon the bank to pay pounds 100 to the judgment creditor or into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer for some or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See PRITCHARD V. WESTMINISTER (1969) 1 ALL ER 999 and RAINBOW v. MOORGATE PROPERTIES LTD. (1975) 2 ALL ER 821. If no sufficient reason appears, the garnishee order is made absolute – to pay to the judgment creditor – or into the Court: whichever is more appropriate. On making the payment, the bank gets a good discharge from its indebtedness to its own customer – just as if he himself directed the bank to pay it.’”
See also UBN PLC vs. BONEY MARCUS INDUSTRIES LTD (2005) 13 NWLR (PT. 943) 654 at 666, CITIZENS INTERNATIONAL BANK LTD vs. SCOA NIG. LTD (2006) LPELR (5509) 1 at 6-7, UWAK vs. SAMPSON (2017) 10 NWLR (PT 1574) 491 and

UBA PLC vs. OPTION ONE AGRITRADE (NIG) LTD (2018) LPELR (43865) 1 at 14.

The Appellant disputed its liability to the 1st Respondent/Judgment Creditor, the garnishor, on the grounds that it was not indebted to the 2nd Respondent/Judgment debtor as it had a lien on the funds in its possession and that it had set off the funds against the huge debt which the 2nd Respondent/Judgment debtor owed to it.

In paragraphs 4-8 of the ‘Affidavit To Show Cause’ the Appellant deposed as follows:
“4. That I know as a matter of fact that the Judgment Debtor operates with the 3rd Garnishee current account with Sub-account numbers 400100040683, 40010022251, 400100051588, 40050008235 and 0103992-4/001/0038/001.
5. That the Judgment Debtor’s Account numbers 40010022251 and 0103992-4/001/0038/001 are all overdrawn by virtue of the credit facility granted the Judgment Debtor by the 3rd Garnishee of which as at the 28th April 2004 and 25th March 2004, the two accounts are in the debit balance of N376,214,391.47DR (Three Hundred and Seventy Six million, Two Hundred and Fourteen Thousand, Three Hundred and Ninety One Naira, Forty Seven Kobo) and

N413,666,666.71DR (Four Hundred and Thirteen Million, Six Hundred and Sixty Six Thousand, Six Hundred and Six [sic] Naira, Seven One Kobo) respectively.
6. That Account numbers 400100040683,400100051588 and 400500018235 are in the credit sum of N3, 195, 160.94, N1, 995.11 and N7, 821.08 respectively as at the 26th April 2004. Attached herewith as Exhibits A, B, C, D & E are the Bank Statements of Account showing the true position of the Accounts.
7. That further to paragraphs 6 & 5 above the total indebtedness of the Judgment debtor to the 3rd Garnishees as at 28th April 20044[sic] stood at N785,641,352.17(Seven Hundred and Eighty Five Million, Six Hundred and Forty One Thousand, Three Hundred and Fifty Two Naira, Seventeen Kobo).
8. That in view of the facts in paragraphs above, the 3rd Garnishee is unable to attach any sum in the Judgment-debtor’s accounts as ordered by this Honourable Court.”
(See pages 16-17 of the Records)

In the above depositions, the Appellant stated that two of the 2nd Respondent’s accounts were in debit while the other three had credit balances; but that the debit balance exceeded the

credit balance, such that the 2nd Respondent was in fact indebted to it by well over N780Million, and that there were therefore no funds of the 2nd Respondent with it that can be attached in satisfaction of the judgment debt of N2.7Million.

In arriving at its decision, the lower Court held that there was no deposition in the affidavit showing cause that the various accounts of the 2nd Respondent had been consolidated. It then proceeded to make the garnishee order absolute in respect of the three accounts of the 2nd Respondent which had credit balances. This is how the lower Court reasoned at page 71 of the Records in making the garnishee order absolute:
“I have carefully considered the affidavit to show cause of the 3rd garnishee i.e. GUARANTEE TRUST BANK. It specifically avers in paragraph 6 that Account No.400100040683 is credited to the tune of N3,195,160.94Naira, whilst Account No.400100051588 is funded to the tune of N1,995.11 and Account No. 400500018235 is also funded to the tune of N7,821.18.
I have equally perused the statement of account in respect of each account stated above and same establishes that the garnishee bank has funds

of the judgment debtor in its possession in those specified accounts. I need to observe that whilst the judgment debtor has several other accounts with the garnishee bank which do not appear properly funded, there is no averment on the affidavit to show cause that all the accounts and sub accounts totaling [sic] about nine has in any way been consolidated, each account appears separate and distinct and I so hold.
The essence of garnishee proceedings is basically to confirm whether or not the garnishee has funds of the judgment debtor which in this case has been amply demonstrated on the affidavit and exhibits.
Accordingly, I hereby decree the garnishee order ABSOLUTE, against the 3rd garnishee. All the funds standing to the credit of the judgment debtor in Account No.400100040683, 400100051588 and 400500018235 shall be paid by a bank certified cheque to the judgment creditor not less than 7 days from today in satisfaction of the judgment debt of N2,746,983.05 together with interest at the post judgment rate of 6% per annum.”

Now, it seems trite law that a bank has the right to consolidate and combine accounts held by its customer in order

to set off any debt owed to it: JOE GOLDAY CO LTD vs. CO-OPERATIVE DEVELOPMENT BANK PLC (2003) 2 SC 1 at 15-16. The Appellant deposed on the balance in the various accounts of the 2nd Respondent (Debit and Credit balances) in paragraphs 5, 6 and 7 of the Affidavit to show cause. Having so deposed, in a manner showing that the debit balance far outweighed the credit balance, the Appellant then deposed in Paragraph 8 that it was unable to attach any sum in the 2nd Respondent’s account as ordered by the lower Court. It seems to me effulgent that an integral reading of the said paragraphs of the affidavit to show cause makes it limpid that the Appellant consolidated the said accounts on account of which it deposed that there were no funds standing to the credit of the 2nd Respondent which could be attached in satisfaction of the judgment debt. Howbeit, it has not been confuted that the 2nd Respondent is indebted to the Appellant. It is abecedarian law that a garnishee is entitled to set off any debt due to him from the judgment debtor at the date when the order nisi was served on him. By this settled state of the law, the Appellant was entitled to set

off the N3.2Million standing to credit of the 2nd Respondent against the N785Million which the 2nd Respondent owed it. Upon this set off being done, it is as clear as crystal that the Appellant was not indebted to the 2nd Respondent and did not have any funds standing to the credit of the 2nd Respondent which could be attached in satisfaction of the judgment sum due to the 1st Respondent and sought to be enforced by the garnishee proceeding. See Section 85 of the Sheriffs and Civil Process Act and the case of PPMC LTD vs. DELPHI PETROLEUM INC. (2005) 8 NWLR (PT 928) 548.
In FIDELITY BANK vs. OKWUOWULU (2012) LPELR (8497) 1 at 22-23, Ogunwumiju, JCA (now JSC)stated the legal position in the following words:
“The authorities are of the view that a garnishee is entitled to set off any debt due 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 the judgment debtor, at any rate where it arises out of the same transaction as the debt sought to be attached. See Tapp v. Jones (1975) LR 10 QB 591 at 593, see also Hale v. Victoria Plumbing Co. Ltd (1966) 2

QB 746. However, the garnishee cannot set off debts accruing after service of the garnishee order nisi, nor can he set off a debt due to him from the judgment creditor. See the case of Sampson v. Seaton RLY Corp. (1874) LR QB 28, See also the case of O.A.U. v. Olanihun. …the Garnishee has a right of set off in respect of a liquidated sum in its custody. It may exercise this right in respect of a different transaction in which it is a party or in respect of any assignment to another party of the garnisheed sum by the judgment debtor.”
In his contribution at pages 31-32, Danjuma, JCA opined:
“In respect of this issue, I also agree that where a Bank is entitled in law to consider the sums or money of a customer in its vault as a loan to it to be dealt with, subject to its been paid over on call or in accordance with the Banking Regulations and contract that may have been entered into between the parties, such sums, in different accounts of the same holder, may be considered as one same Account for the purpose of settling liability due from the customer in favour of the Banker. In this case therefore, the Bank was perfectly right even as a

garnishee to have protected its right (which enjoyed priority in creation, and equity) to the sums in the Account that was said to be on credit. This is necessarily so, because an order nisi only created an equitable charge over the funds in favour of the Judgment creditor… Being an equitable charge, it necessarily means that in competition with the Banker’s equity, the first in time must prevail. The word “Nisi” means, ‘unless’. Hence a garnishee order ‘Nisi’ accordingly takes effect at a stated date and time unless something happens to prove that the Court order should not be enforced. In the absence of evidence to stop the proceedings, the order will be made absolute and the second step is thereby completed. At this level, payments may be made. However, as stated by Deolu Oluyinka, ACIB in his book entitled Practice of Banking, Vol. 1 (2004) at page 123. ‘If the Garnishee (the Bank) has the money available due to the debtor, he will be compelled to pay it over to the Court for the benefit of the garnishor. (The Judgment creditor)’ In other words if the money is not there, it cannot be paid. Indeed since the service

of a garnishee order determines the banker’s right to pay cheques, it also entitled the Bank to set off credit balances of the customer against any of his actual (not contingent) indebtedness to the Bank, to determine the net balance, if any, accruing, due and owing by the Bank to the customer and thereby attached by the garnishee order. See Deolu Oluyinka, ACIB, Practice of Banking supra at page 134. Indeed the Account that was in debit as a result of overdraft facility granted by the Garnishee to the Debtor automatically must be related and tied back to the affluent Account in protection of the Banker/Garnishee. That being the case, I hold that there were no funds belonging to the Debtor in existence to be attached by an order absolute for the benefit of the Judgment Creditor herein. The trial Judge was therefore wrong in granting an order of Decree Absolute in the circumstances.”
See also ZENITH BANK PLC vs. KANO (2016) LPELR (40335) 1 at 15 and ZENITH BANK PLC vs. OMENAKA (2016) LPELR (40327) 1 at 26-27.
Section 83 (1) of Sheriffs and Civil Process Act provides:
“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 or his legal practitioner that judgment has been recovered and that it is still unsatisfied and to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid.”
The above stipulation is clear that the money which can be attached to satisfy a judgment debt is the debt which a third party owes the judgment debtor. The affidavit to show cause filed by the Appellant was neither challenged nor

controverted. The lower Court was obligated to give full weight and value to the depositions therein as establishing that the Appellant was not indebted to the 2nd Respondent and did not have any funds standing to the credit of the 2nd Respondent which could be attached in satisfaction of the judgment debt which the 2nd Respondent owed the 1st Respondent. The depositions in the affidavit to show cause which were authenticated by the statements of account showing the balances in the various accounts are not wilfully or corruptly false, improbable or manifestly incredible. The lower Court was therefore wrong not to have acted on them: NEKA B.B.B. MANUFACTURING CO. LTD vs. A.C.B. LTD (2004) 2 NWLR (PT 858) 520 at 550 -551, LAWSON-JACK vs. SHELL (2002) 12 MJSC 114 at 125 and OBASANJO FARMS vs. MUHAMMAD (2016) LPELR (40199) 1 at 41-42.
The failure by the lower Court to act on and accredit the unchallenged affidavit to show cause resulted in the lower Court arriving at the perverse decision of making the garnishee order absolute. A decision is said to be perverse where it is persistent in error, different from what is reasonable or required, against the weight of

evidence. A decision may be perverse where the Court took into account matters which it ought not to have taken into account or where, as in this case, the Court shuts its eyes to the obvious: ATOLAGBE vs. SHORUN (1985) LPELR (592) 1 at 31, IWUOHA vs. NIPOST (2003) LPELR (1569) 1 at 39-40 and GONZEE NIG LTD vs. NERDC (2005) LPELR (1332) 1 at 22.
In the circumstances, it behoves this Court to intervene and set aside the perverse decision of the lower Court in order to obviate miscarriage of justice, especially as the evidence in question is affidavit and documentary evidence and does not involve the credibility of witnesses vide GONZEE NIG LTD vs. NERDC (supra), IWUOHA vs. NIPOST (supra) and MOMOH vs. UMORU (2011) LPELR (8130) 1 at 38.
In a coda, the affidavit to show cause clearly established that the Appellant did not have any funds standing to the credit of the 2nd Respondent. The lower Court was consequently in error when it made the garnishee order absolute.

The appeal succeeds. The decision of the lower Court delivered on 21st April, 2005 is hereby set aside. In its stead, it is hereby ordered that the garnishee order nisi made against the

Appellant on 5th April, 2004 is hereby set aside and the Appellant is discharged.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment prepared by my learned brother, Ugochukwu Anthony Ogakwu, J.C.A.

EBIOWEI TOBI, J.C.A.: I have read in advance the leading judgment of my learned brother, Ugochukwu Anthony Ogakwu, JCA and I am in agreement with my lord’s analysis and resolution of the lone issue presented by the Appellant for determination by this Honourable Court. I must state that it is rather a strange practice for the 2nd Respondent to be advocating in its brief that the appeal be allowed by this Court rather than it being dismissed. It goes against the fundamentals of a Respondent’s brief vide Inakoju & Ors vs. Adeleke & Ors (2007) LPELR-1510 SC; Ogunye & Ors vs. State (1999) LPELR-Z356 (SC). It is on this note that I must commend my learned brother for discountenancing the brief of the 2nd Respondent and determining the appeal solely on the Appellant’s brief.

On a whole, I am in support of my learned brothers final decision in the judgment and the order contained therein. I have nothing more to add.

Appearances:

K. AWORINDE, ESQ.For Appellant(s)

SIMI O. AHONSI, ESQ. – for the 1st Respondent
GODWIN C. ANYAFULU, ESQ. – for the 2nd RespondentFor Respondent(s)