OKAFOR v. FCMB LTD & ANOR (2020)

OKAFOR v. FCMB LTD & ANOR

(2020)LCN/15185(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, February 28, 2020

CA/K/415/2018

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Saidu Tanko Hussaini Justice of the Court of Appeal

Between

CHIMEZIE OKAFOR APPELANT(S)

And

1. FIRST CITY MONUMENT BANK LIMITED 2. INSPECTOR-GENERAL OF POLICE RESPONDENT(S)

RATIO

GARNISHEE PROCEEDINGS

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Kaduna State in suit No. KDH/KAD/119/17 delivered on 16th May 2018 wherein the Court below discharged its order nisi dated 6th December 2017 attaching monies of the 2nd Respondent (1st judgment debtor before the lower Court) in custody of the 1st Respondent (garnishee before the lower Court).

The Appellant had obtained monetary judgment against the 2nd Respondent at the High Court of FCT Abuja in suit No. FCT/HC/CV/1436/15 on 15th March 2016. The Appellant further registered the judgment at the High Court of Kaduna State as suit number KDH/KAD/119/17, following which a garnishee order nisi dated 20th November 2017 was made. The Guaranty Trust Bank Plc had earlier paid part of the judgment debt leaving an outstanding sum of Thirty Eight Million, Seven Hundred and Ninety Thousand, Five Hundred and Six Naira, Ninety Three Kobo Only (N38,790,506.93) unsatisfied by the 2nd Respondent. To recover the said outstanding amount the Appellant commenced garnishee proceedings before the lower Court via motion ex parte dated 4/12/2017 against the 1st Respondent, as garnishee praying, inter alia, for the following reliefs:
“An order nisi attaching the monies in the following accounts numbers 2693645198-FPCNL/Nigerian Police/NPLFPL RSA fund, 4233252013-NPF – EOD unit FHQ Abuja and 2693645208-FPCNL/Nigerian Police Force /NPFPL – RSA funds, or any other account domiciled with the garnishee being accounts belonging to the 1st judgment debtor or so much thereof as my be sufficient to satisfy the judgment sum of N38,790,506.93k in this suit”.

By order nisi dated 6/12/2017, the lower Court granted the relief sought and ordered the 1st Respondent to show cause why the judgment debtor’s money in her custody should not be paid to the Appellant in satisfaction of the judgment debt. The 1st Respondent filed an affidavit showing cause dated 18/12/17 and based on the information provided by its Regional Legal Head, Sule Elakamah Esq., admitted in paragraph 3(a) that the 2nd Respondent maintained those accounts in the following averments:
“That the 1st Judgment Debtor maintains bank accounts No. 4233252013 with FCMB Garnishee with a credit balance of N999.03, account No. 2693645190 with a ZERO balance and account No. 2693645208 with a Zero balance as per attached bank statement of accounts marked as exhibits ‘A’, ‘B’ and ‘C’ and there is no other 1st Judgment Debtor’s money with the garnishee”.

The Appellant, upon being served with the affidavit showing cause, filed a counter affidavit against same, showing that the 2nd Respondent has a credit balance of over N2.3 billion Naira in account number 2693645208 with the 1st Respondent but concealed in a term deposit number 9993022693645028.

Upon being served with the said counter affidavit and based on information provided by the same Regional Legal Head, Sule Elakamah Esq., the 1st Respondent filed a further and better affidavit on the 23/1/2018 wherein it admitted the existence of fixed deposit account number 9993022693645028 but denied that account number 2693645208 belong to the 2nd Respondent.

The matter was argued on 28/2/2018 and thereafter adjourned to 25/4/2018 for ruling. However, on the 10/4/2018 the 1st Respondent filed Notice of Preliminary Objection. In response, the Appellant filed a counter affidavit and written address dated 17/4/2018 opposing the preliminary objection as being an abuse of the Court process aimed at arresting the ruling slated for 25/4/2018. Similarly, and upon obtaining Certified True Copies of Court processes in another proceedings involving the Respondents, Appellant also filed further affidavit dated 23/4/2018 and in paragraph 5(b) of the said further affidavit exhibited certified true copy of the statement of account number 9993022693645028 confirming that the NPF had N2.03 billion with the 1st Respondent as at 11/12/2017 when order nisi was served on the bank, but surreptitiously and contemptuously transferred to another account on the 3/1/2018 during the pendency of the garnishee proceedings. In paragraph 4(b) of Exhibits B attached to the further affidavit, the 1st Respondent again through information provided by the same Regional Legal Head, Sule Elakamah Esq. to its counsel, Messrs Ola Olanipekun, SAN & Co. admitted also that account numbers 2693645208 and 9993022693645028 among others belong to the 2nd Respondent.

The preliminary objection was argued on 25/4/2018 and the lower Court thereafter adjourned to 16/5/2018 for consolidated ruling, wherein the Court discharged the order nisi made on 6/12/2017 on the ground that there was no proof of the existence of any money in the account of the 2nd Respondent with the 1st Respondent. Hence, this appeal predicated on three grounds from which the following lone issue was distilled by the Appellant for determination thus:
Whether from the totality of evidence before the Court vis-a-vis the current position of the law, the lower Court ought to have made her order nisi of 6/12/17 absolute against the 1st Respondent. (Distilled from grounds 1 and 2 of the Notice of Appeal).

The learned counsel for the 2nd Respondent, M. A. Omo-Osagie, Esq., However, submitted the following twin issues in determination:
1. Whether from the facts of the suit right from the Federal High Court, Abuja through to High Court 11 Kaduna, the Nigeria Police Force was a party and a Judgment Debtor?
2. Whether the Nigeria Police Force and its subsidiaries viz – Police Penson Ltd, RSA Funds, EOD are not legal entities different from the Person of Inspector-General of Police (Judgment Debtor)?

The Appellants’ sole issue is subsumed by the 2nd Respondent’s twin issues and are apt to the subject matter of the appeal. The two issues, being predicated on are adopted for the determination of the appeal.

The learned counsel for the Appellant, C. E. Ezema Esq., defined Garnishee Proceeding as a process for enforcement of monetary judgment by seizure or attachment of the debt due or accruing to the judgment debtor which form part of his property available for execution. It is separate and distinct action from the suit under which the judgment creditor’s right against the judgment debtor accrued. The case of UBA PLC v EKANEM (2010) 6 NWLR (Pt.1190) p.207 was referred to and relied upon.

It was further argued for the Appellant that the duty of the garnishee is to faithfully and conscientiously disclose the state of account of the judgment debtor in its custody. In the case of C.B.N v INTER-STELLA COMMUNICATIONS LTD (2018) 7 NWLR (pt. 1618) p. 350, parsed D-E; G-H, the Supreme Court of Nigeria held thus:
“Basically, the restrictive role and legal duty of garnishee; in judgment enforcement proceedings is to conscientiously and truthfully appear to disclose the judgment debtor’s state of account in its custody. So it is not the garnishee’s business to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. (Oceanic Bank Plc Vs Oladepo (2012) LPELR – 19670 referred to”.

In the same judgment, Ogunbiyi J.S.C. observed thus;
“By the rule of jurisprudence, no injustice will be done to garnishee, neither will it be denied any legal right when made to give up the judgment debtor’s money in its custody. It is also inequitable to latch on to the money that does not belong to it when the judgment debtor has conceded the judgment”.

It was submitted for the Appellant that, in the instant case, the evidence on record shows that the 1st Respondent (garnishee) was not truthful and conscientious in disclosing the 2nd Respondent’s state of account with it. The 1st Respondent admitted in their affidavit to show cause that account number 2693645208 is maintained by the 2nd Respondent but that all that the 2nd Respondent had in its account was N999.00. It said nothing about the account coded as 9993022693645028 and its relationship with account number 2693645208, in spite the fact that the order nisi clearly covered any other account belonging to the 1st Respondent. However, the 2nd Respondent allegedly had over N2.03 billion Naira with the 1st Respondent. The 1st Respondent, however, explain that accounts numbers 2693645308 and 9993022693645028 do not belong to the 2nd Respondent. Yet, exhibits A and B attached to judgment creditor’s further affidavit, which are Certified True Copies of 1st Respondent’s affidavit.

The Regional Legal Head of the 1st Respondent, Sule Elakamah, Esq., supplied the information contained in Exhibit B to the said further affidavit. The statement of account attached to Exhibit B also show that the Respondent surreptitiously and contemptuously transferred the money to another account on the 3/1/2018 during the pendency of the garnishee proceedings, notwithstanding that the 1st Respondent was served with the order nisi on 11/12/2018. Exhibit B attached to the Judgment Creditor’s Further Affidavit of 23/4/18 also show that Sule Elakamah, Esq., was lying in a bid to deceive the Court when he furnished the information contained in the Further and Better Affidavit of 23/1/18 and the Affidavit in Support of Preliminary Objection of 10/4/18.

It was further submitted that the 1st Respondent’s attempt to deny 2nd Respondent’s ownership of account number 2693645208 and 9993022693645028 is not tenable, as the 1st Respondent cannot approbate and reprobate at the same time. Reliance was placed on the case of Duruaku Vs Nwoke (2016) ALL FWLR (Pt. 815) p. 351 at p. 393, paras. B-E. The Court was urged to resolve the issue in favour of the Appellant and allow the appeal.

The learned counsel for the 2nd Respondent, however, argued that a cursory look at the facts in this suit right from the lower Court reveals that the account garnished does not belong to the 2nd Respondent (Judgment Debtor). It is rightly captured in the latin maxim res inter acta ateri nocere non debt which literarily means things done between strangers ought not to injure those who are not parties to them. See the case of NWADIKE VS. IBEKWE (1987) 4 NWLR (PT.67) 719. It was submitted that the Nigeria Police Force and its subsidiaries were not parties in the suit that culminated into the instant garnishee proceedings and that it was wrong to garnish the funds of the NPF in respect of a debt owed by the Inspector General of Police. See the case of OJUKWU VS GOVERNMENT OF LAGOS STATE (1985) 2 NWLR (PT. 10) 806.
The Court was urged to resolve the issue against the Appellant and dismiss the appeal.

Garnishee proceedings are governed by section 83(1) of the Sheriff and Civil Process Act Cap 56 LFN 2004, which provides as follows:-
“The Court may, upon exparte 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 what amount, and that any other person is indebted to such debtor and is within the State, order that debt owing from such third person herein after 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 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 cost aforesaid”.
The foregoing provision clearly requires that the Judgment debtor must be indebted to the Garnishor. In other words, the Garnishee must be in custody of the money belonging to the Judgment debtor.
Thus, the contention of the Appellant that money in the account of the Nigeria Police Force be attached to pay the debt of the Inspector General of Police was misconceived. Garnishee proceedings requires attachment of funds in account of judgment debtor, which the NPF and its subsidiaries were not.
The onus is on the Judgment Creditor/Appellant in a Garnishee application of this nature to show that the money in the hands of the garnishee belongs to the Judgment debtor who is the Inspector-General of Police. Thus, funds in the account of the Nigeria Police Force or any of its subsidiaries were wrongly garnished in the instant proceedings. The accounts attached by the counsel to the Appellant has been shown to belong to the Nigeria Police Force and its subsidiaries. The law as stated above is that the Judgment debtor must be indebted to the third person garnishor or have funds, capable of satisfying the judgment debt wholly or partly, standing to the credit of the judgment debtor. In other words, the garnishee must be in the custody of the money belonging to the Judgment debtor. The Inspector-General of Police is only an agent of the Nigeria Police Force. The Appellants had commenced the garnishee proceedings against the 1st and 2nd Respondents and obtained a garnishee order of the 2nd Respondent’s funds from the 1st Respondent but when the 1st Respondent gave a balance of N999 in the 2nd Respondent’s account, the Appellant sought to garnish funds in the account of the NPF, which was not the judgment debtor.
It must be emphasized that only money standing to the credit of the judgment – debtor, as at the time the order nisi was served, is attachable and upon which an order absolute may be obtained by the judgment creditor in garnishee proceedings. The order nisi was wrongly issued against the account of the NPF that was neither a judgment debtor nor a party to the judgment upon which the garnishee proceeding was founded. It is only the money in the bank account of the judgment – debtor that is attachable.

Issue one is accordingly resolved in favour of the Respondents and against the Appellant. This resolution settles the clear merit of this appeal and renders the second issue academic and insignificant. The appeal clearly lacks merit and same is hereby dismissed. The judgment of the Court below in suit No. KDH/KAD/119/17 delivered on 16th May 2018 is hereby affirmed. The parties shall bear own costs.

OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother Hussein Mukhtar, JCA and I agree with my lord’s reasoning and conclusions therein. The objective of a garnishee proceeding is to attach a debt owed the judgment debtor by a third party, the garnishee. The judgment debtor in the appeal here is the Inspector-General of Police. It is therefore the money owed him by the garnishee that can be attached by a judgment creditor through garnishee proceedings. The owner of the money in account number 2693645208 fixed with code number 9993022693645028 in the hands of the garnishee (the 1st Respondent) is the Nigeria Police Force and not the judgment debtor who as earlier mentioned, is the Inspector-General of Police. In the circumstances, the lower Court was quite right to have discharged its order nisi of 6/12/17. For this reason, which reason is also more elaborately stated in the lead judgment of my noble lord, I find that the appeal lacks merit. The judgment of the lower Court is therefore affirmed.

SAIDU TANKO HUSSAINI, J.C.A.: I have read in draft the lead Judgment delivered by my Lord, Hussein Mukhtar, JCA. I agree with my Lord, the reasoning and conclusion. I have nothing useful to add.

Appearances:

E. EZEMA, ESQ. For Appellant(s)

EMMANUEL U. NWOKENEKWU, ESQ. – for 1st Respondent
M. A. OMO-OSAGIE, ESQ. – for 2nd Respondent For Respondent(s)