ZENITH BANK PLC v. ALHAJI MANU KANO & ORS (2016)

ZENITH BANK PLC v. ALHAJI MANU KANO & ORS

(2016)LCN/8124(CA)

In The Court of Appeal of Nigeria

On Monday, the 25th day of January, 2016

CA/YL/103/2014

RATIO

PRACTICE AND PROCEDURE: A GARNISHEE PROCEEDING; THE NATURE OF A GARNISHEE PROCEEDING

The sole issue as distilled by the Appellant is adopted in the determination of this Appeal. A Garnishee proceeding is a means of collecting a monetary Judgment against a Judgment debtor by ordering a third party (the Garnishee) to pay money otherwise owed to the Judgment Debtor, directly to the Judgment Creditor. See UBN Plc V Boney Marcus Industries Ltd (2005) ALL FWLR (Pt. 278) 1037 at 1046-1047 (SC). By the customer/banker relationship, the money of a customer is in contract. Money in the hands of the Bank is borrowed from the customer. As such, until it has been demanded for by the customer, it remains in the custody and control of the Bank for use. By the Judgment Enforcement Rules, where such Bank is within the jurisdiction of the Court that has decided a debt as due to the Judgment Creditor against a Judgment Debtor to whom the Bank is a borrower of his proceeds or monies, default in payment by such customer/Judgment Debtor can be utilized in realization or settlement of the Judgment debt, albeit where such funds are in the hands of the Bank and not yet payable to the Judgment Debtor; but could be enforced as immediately payable by such Court to the Judgment Debtor/customer. Stated another way, a Garnishee proceeding is a process of enforcing a money Judgment by the seizure or attachment of the debt due and accruing to the Judgment Debtor which forms part of his property in the hands of a third party for attachment. By this process, the Court is competent to order a third party, in whose hands the property of the Judgment Debtor is, to pay directly to the Judgment Creditor the debt due and accruing from him to the Judgment Debtor or as much as it may be sufficient to satisfy the Judgment and the costs of the proceedings. Therefore, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account referred to in the Decree Nisi does not exist in its system, or if it exists, it is heavily in debt and not in credit, or that the number stated on the order nisi had since changed to another version. See: Fidelity Bank Plc V Okwuowulu (2012) LPELR-8497(CA); Citizens International Bank V SCOA (Nig.) Ltd (2006) 18 NWLR (Pt. 1011) 334. per. JUMMAI HANNATU SANKEY, J.C.A.

PRACTICE AND PROCEDURE: GARNISHEE PROCEEDING; THE IMPLICATION OF THE FAILURE OF THE GARNISHEE TO PAY INTO THE COURT THE AMOUNT DUE WITHIN THE TIME PRESCRIBED BY THE COURT

Where the Garnishee fails to pay into the Court the amount due within the time prescribed by the Court or the amount equal to the Judgement Debt and at the same time does not show cause why he is not able to do so, the Court, upon proof of service, may order execution which in effect is an order absolute. The law governing these garnishee proceedings is as set out in Section 86 of the Sheriffs and Civil Process Act, Cap 204, Laws of the Federation of Nigeria, 2004, which provides as follows: “If the Garnishee does not, within the prescribed time, pay into the Court the amount due from him to the Judgment Debtor or an amount equal to the Judgment Debt together with the cost of the Garnishee proceedings and does not dispute the debt due from him to such debtor, or if he does not appear upon summons, the Court, upon proof of service may, order execution to issue accordingly without any previous writ or process, to levy the amount due from such Garnishee, or so much thereof as maybe sufficient to satisfy the Judgment or Order, together with the cost of the Garnishee proceedings.” per. JUMMAI HANNATU SANKEY, J.C.A.

PRACTICE AND PROCEDURE: GARNISHEE PROCEEDINGS; THE EFFECT OF THE FAILURE OF A GARNISHEE TO A PROCEEDING TO DISPUTE THE DEBT DUE AND THE EFFECT OF THE SITUATION WHERE THE GARNISHEE DISPUTES THE DEBT OWED

Therefore, where a Garnishee to a proceeding does not dispute the debt due, the Garnishee has to pay the amount due to the Court and in default, an order absolute will be levied against him in order to compel the Garnishee to discharge this responsibility. This was the purport of the decision in Wema Bank Plc V Brastem-Sterr (Nig) Ltd (2011) 6 NWLR (Pt. 1242) 58 at 82. However, in the converse situation, in the event of a Garnishee disputing the debt owed it to the Judgment Debtor, Section 87 of the Act (supra) provides as follows: “If the Garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined or may refer the matter to a referee.” This provision was fully applied by this Court in a similar proceeding in Nigeria Hotels Ltd V Nzekwe (1990) 5 NWLR (Pt. 149) 187 at 197, wherein Adio, JCA (as he then was) held as follows: “In view of the matters deposed to in the said affidavit filed on behalf of the Appellant which was before the learned trial Judge on 24th July, 1987 when he heard and granted the application and which contain a denial of liability, what Section 87 of the Sheriffs and Civil Process Act, Cap 123 of the Laws of Northern Nigeria requires a Court to do when liability is denied and which the learned trial Judge should have done, instead of making an order that execution shall issue, was either to order that the issue or question necessary for determining liability be tried or determined in any manner in which any issue or question in any proceedings might be tried or determined or to refer the matter to a referee.” per. JUMMAI HANNATU SANKEY, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

ZENITH BANK PLC

(1ST GARNISHEE) – Appellant(s)

AND

1. ALHAJI MANU KANO

1ST RESPONDENT

2. FIRST BANK PLC

2ND RESPONDENT

(2ND GARNISHEE)

3. THE GOVERNMENT OF ADAMAWA STATE

4. MINISTRY OF LANDS AND SURVEY

5. ATTORNEY GENERAL ADAMAWA STATE

(JUDGMENT DEBTORS/RESPONDENTS) – Respondent(s)

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Justice Adamawa State delivered on 18th November, 2014 in Suit No. ADS/50m/2014 wherein it made a Garnishee Order Absolute against the Appellant/1st Garnishee in satisfaction of a Judgment awarded in favour of the 1st Respondent in Appeal No: CA/YL/11/2013 to the tune of N21,757,397.00.? In an attempt to realize the fruit of this Judgment, the 1st Respondent applied to the Lower Court for a garnishee order nisi against the Appellant as 1st Garnishee and the 2nd Respondent as the 2nd Garnishee. The application was duly granted and the two Garnishees were ordered to show cause why the order nisi should not be made absolute. In response, the Appellant filed a 13 paragraph affidavit annexed to which were five exhibits showing cause why the order nisi should not be made absolute against it. The 2nd Garnishee/Respondent, on its part, did not file any process showing cause nor did it make any submissions at the hearing of the application tending to show that it did not have any funds belonging to the Judgment Debtors

upon which a valid garnishee order absolute could be made. At the close of hearing, the learned trial Judge made a general and joint order absolute against both Garnishees on 18th November, 2014. Dissatisfied, the Appellant filed a Notice of Appeal on 20th November, 2014 wherein it complained on three grounds.

At the hearing of the Appeal on 29th October, 2015, learned Counsel for the Appellant, S. N. Nzonzo Esq. adopted and relied on the Appellant’s Brief of argument dated 22nd January, 2015 and filed on 3rd February, 2015. He urged the Court to allow the Appeal and set aside the order absolute. Even though there was evidence of service of all the Court processes, inclusive of the Appellant’s Brief of argument and hearing notices on the 1st and 2nd Respondents to the Appeal, they neither filed briefs of argument nor did they put in an appearance in any manner whatsoever. The Appeal was therefore un-contested and heard on the Appellant’s Brief alone.

In the Brief of argument, learned Counsel for the Appellant formulated a lone issue for determination, to wit:

Whether the trial Court was right in granting a

general/joint garnishee order absolute against the Garnishees despite the 1st Garnishee/Appellant filing and showing sufficient cause as to why an order absolute should not be made against her, whereas the 2nd Garnishee/Respondent neither showed any cause as to why the order nisi should not be made absolute against her nor advance any argument as to having insufficient funds to unilaterally settle the Judgment debt. (Grounds 1, 2 and 3)

?In arguing the Appeal, Counsel submits that the 1st Respondent sought to realize the fruit of his Judgment delivered by this Court on 27-03-14 and thus, applied to the Lower Court for an order to arrest the money of the Judgment Debtors with the Garnishees in satisfaction of the Judgment Debt. The Lower Court made an order nisi which was served on the Garnishees to show cause why the order nisi should not be made absolute on the return date of 30-10-14. The Appellant filed a 13 paragraph affidavit annexed to which were five exhibits to in order to show cause as required of it. Counsel relied on Order 43 Rule 5 of the Adamawa State High Court (Civil Procedure) Rules, 2013; and Section 87 of Sheriffs and Civil

Process Act.

Learned Counsel submits that the 2nd Respondent however did not file any process or advance any argument at the hearing as to why the order nisi should not be made absolute against her, neither did she complain of any lack of funds of the Judgment Debtors with 2nd Garnishee to satisfy the Judgment debt. Counsel relied on Order 43 Rule 4 (1) Adamawa State High Court (Civil Procedure) Rules 2013 and Section 86 of Sheriffs and Civil Process Act. He therefore submits that the learned trial Judge erred when he relied on only Paragraph 7 of the Appellant’s affidavit showing cause, in isolation of the other paragraphs, particularly paragraphs 8 to 12 and Exhibits Z1 to Z5, in proceeding to issue an order absolute against both Garnishees.

Counsel submits that the Appellant stated in paragraphs 8 and 12 of her affidavit that the 1st Judgment Debtor is indebted to her, and that based on the agreement between them, the funds available in the two accounts with her had been set-off against the debt. He further submits that the law obligates the learned trial Judge not only to consider all paragraphs of the affidavit, but also to rely on the

duly attached documents. He relies on Ilorin East Local Government V Alasinrin (2012) All FWLR (Pt. 645) 227 at 252, paras C-D.

Counsel further submits that neither the 1st Respondent (Applicant before the Lower Court) nor any other party in the Garnishee proceedings filed any counter affidavit to the Appellant’s affidavit to show cause. He submits that an affidavit answers an affidavit, and thus the failure to file a counter affidavit to the Appellant’s affidavit meant that the affidavit represents the truth of all the averments contained therein. He relies on Zain (Nig.) Limited V Ilorin (2013) All FWLR (Pt. 681) 1518 at 1552, paras A-B. He contends that the Lower Court erred in law when it decided to make an order absolute against the 1st Garnishee/Appellant not on the merit, but in total disregard of the evidence in the affidavit denying the availability of funds of the Judgment Debtors. He again relies on Section 87 of the Sheriffs and Civil Process Act, Cap. 204 Laws of Federation of Nigeria, 2004 ; & Nigeria Hotels Limited V Nzekwe (1990) 5 NWLR (Part 149) 187 at 197, paras E-F.

Counsel also submits that the Appellant is

entitled to set-off any debt due to her from the Judgment Debtors as at the date when the order nisi was served upon her. He relies on paragraph 11 of the Appellant’s affidavit, and Exhibit Z5 (at pages 98 &106 of the Record of Appeal); and Hale V Victoria Plumbing Co. Limited (1966) 2 QB 746. He therefore submits that, for the Lower Court to hold that the credit balances stated in Paragraph 7 of the Appellant’s affidavit were the legitimate monies of the Judgment Debtors and that they should be paid by the Appellant in satisfaction of the Judgment Debt of the 1st Respondent, was an order made without due regard to the evidence before it. Counsel finally submits that if the learned trial Judge was dissatisfied with reasons advanced by the Appellant in the affidavit to show cause, the proper procedure should have been to have recourse to the procedure provided under Section 87 of the Sheriffs and Civil Process Act.

Findings:

The sole issue as distilled by the Appellant is adopted in the determination of this Appeal. A Garnishee proceeding is a means of collecting a

monetary Judgment against a Judgment debtor by ordering a third party (the Garnishee) to pay money otherwise owed to the Judgment Debtor, directly to the Judgment Creditor. See UBN Plc V Boney Marcus Industries Ltd (2005) ALL FWLR (Pt. 278) 1037 at 1046-1047 (SC). By the customer/banker relationship, the money of a customer is in contract. Money in the hands of the Bank is borrowed from the customer. As such, until it has been demanded for by the customer, it remains in the custody and control of the Bank for use. By the Judgment Enforcement Rules, where such Bank is within the jurisdiction of the Court that has decided a debt as due to the Judgment Creditor against a Judgment Debtor to whom the Bank is a borrower of his proceeds or monies, default in payment by such customer/Judgment Debtor can be utilized in realization or settlement of the Judgment debt, albeit where such funds are in the hands of the Bank and not yet payable to the Judgment Debtor; but could be enforced as immediately payable by such Court to the Judgment Debtor/customer.

Stated another way, a Garnishee proceeding is a process of enforcing a money Judgment by the seizure or

attachment of the debt due and accruing to the Judgment Debtor which forms part of his property in the hands of a third party for attachment. By this process, the Court is competent to order a third party, in whose hands the property of the Judgment Debtor is, to pay directly to the Judgment Creditor the debt due and accruing from him to the Judgment Debtor or as much as it may be sufficient to satisfy the Judgment and the costs of the proceedings. Therefore, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account referred to in the Decree Nisi does not exist in its system, or if it exists, it is heavily in debt and not in credit, or that the number stated on the order nisi had since changed to another version. See: Fidelity Bank Plc V Okwuowulu (2012) LPELR-8497(CA); Citizens International Bank V SCOA (Nig.) Ltd (2006) 18 NWLR (Pt. 1011) 334.

execution which in effect is an order absolute. The law governing these garnishee proceedings is as set out in Section 86 of the Sheriffs and Civil Process Act, Cap 204, Laws of the Federation of Nigeria, 2004, which provides as follows:

“If the Garnishee does not, within the prescribed time, pay into the Court the amount due from him to the Judgment Debtor or an amount equal to the Judgment Debt together with the cost of the Garnishee proceedings and does not dispute the debt due from him to such debtor, or if he does not appear upon summons, the Court, upon proof of service may, order execution to issue accordingly without any previous writ or process, to levy the amount due from such Garnishee, or so much thereof as maybe sufficient to satisfy the Judgment or Order, together with the cost of the Garnishee proceedings.”

Bank Plc V Brastem-Sterr (Nig) Ltd (2011) 6 NWLR (Pt. 1242) 58 at 82.

However, in the converse situation, in the event of a Garnishee disputing the debt owed it to the Judgment Debtor, Section 87 of the Act (supra) provides as follows:

“If the Garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined or may refer the matter to a referee.”

This provision was fully applied by this Court in a similar proceeding in Nigeria Hotels Ltd V Nzekwe (1990) 5 NWLR (Pt. 149) 187 at 197, wherein Adio, JCA (as he then was) held as follows:

?”In view of the matters deposed to in the said affidavit filed on behalf of the Appellant which was before the learned trial Judge on 24th July, 1987 when he heard and granted the application and which contain a denial of liability, what Section 87 of the Sheriffs and Civil Process Act, Cap 123 of the Laws of Northern Nigeria requires a Court

to do when liability is denied and which the learned trial Judge should have done, instead of making an order that execution shall issue, was either to order that the issue or question necessary for determining liability be tried or determined in any manner in which any issue or question in any proceedings might be tried or determined or to refer the matter to a referee.”

Herein, the Appellant, as 1st Garnishee in the proceedings at the Lower Court, filed a 13 paragraph affidavit, annexed to which were five Exhibits advancing reasons why it should not be made to pay the Judgment Debt (pages 97-106 of the printed Record); while on the other hand the 2nd Garnishee did not show any cause at all why it should not be made to pay the debt. The 1st Garnishee’s affidavit showing cause complied with the relevant provision of the law guiding these proceedings. And even though it is averred in paragraph 7 of the affidavit that the 2nd Judgement Debtor had in its two accounts with the Appellant, to wit: Account number 1011783742 and Account number 1013351158, credited to the tune of N3, 960, 024.62 and N13,827,737.15 respectively, the paragraph

should not have been read in isolation of the other paragraphs in the affidavit, but taken together with the rest of the paragraphs therein. This is so because quite clearly, in paragraphs 8 to 12 thereto, the 1st Garnishee averred further that the Judgement Debtor was indebted to it (the 1st Garnishee) to an amount in excess of the credit standing to its account. These averments are amply supported by Exhibits Z1 to Z5, being documentary evidence in the form of statements of account, the loan facility agreement, as well as a letter from the 1st Judgment Debtor (3rd Respondent herein) granting the Appellant authority to set-off the loan using the funds in its account with the Appellant (See pages 99-106 of the Record). It is significant that these averments were neither controverted by any counter affidavit nor challenged in any way by the 1st Judgment Debtor/customer to the Garnishee Bank. In consequence therefore, since the 1st Judgement Debtor is indebted to the 1st Garnishee in the sum indicated by paragraphs 8 and 9 of the affidavit, she cannot be said to have enough funds in the custody of the 1st Garnishee to satisfy the Judgment Debt. See FIB Plc V

Effiong (2010) 16 NWLR 199 at 207, where in similar circumstances, the Court held as follows:

?In the affidavit to show cause why it should not pay the Judgment Creditor the Judgment sum against the Judgment Debtor, the Appellant annexed Exhibits CA1 and CA2 to show that the Judgment Debtor did not have any credit balance in the Appellant Bank; instead, it was owing the Bank because of the loans the Bank had advanced to the Judgment Debtor… The Court was wrong to conclude that since the loans were secured the Appellant could not claim a lien over the credit balance in the Judgment Debtor?s account. As the Judgment Debtor owed more than the amount standing to its credit, it was a debtor to the Bank and there was nothing to show that the current account the Judgment Debtor maintained with the Bank was held in trust for another person and so could not be merged with the loan account. Furthermore, there is no argument or finding that the various loans granted to the Judgment Debtor had been liquidated which left the Judgment Debtor with a credit balance that could be attached and garnished by the Judgment

Creditor/Respondent.?

?In like manner, the 1st Garnishee, having successfully shown that the 1st Judgement Debtor owed it monies on the loan facilities granted to her, and which the 1st Garnishee was yet to set-off, the Lower Court ought to have declined to make the Garnishee order absolute. It is only in the event that there had been a counter affidavit disputing the position of the 1st Garnishee as deposed to in its affidavit that the Court should have proceeded to set the matter down for hearing, or to refer same to a referee. However, it certainly should not have gone ahead to make an order absolute without due regard to the facts disclosed in the affidavit of the Appellant. Since, in the circumstances of this case, neither the 1st Judgment Debtor/customer of the Garnishee Bank nor the Judgment Creditor had filed any counter affidavit challenging the facts contained in paragraphs 8 to 12 of the affidavit of the 1st Garnishee showing that the Judgment Debtor actually owed the Garnishee Bank a sum in excess of the amount standing to her credit in the account, the grant of an absolute order was both premature and un-merited. Just as in the

decision in FIB Plc V Effiong (supra), in the instant case, there was also no evidence before the Lower Court to show that the loan which the Judgement Debtor obtained from the 1st Garnishee had been liquidated, even as the loan owed by the Judgement Debtor to the 1st Garnishee was in excess of the credit standing to her account with the 1st Garnishee.

The authorities are ad idem that a Garnishee is entitled to set-off any debt due to him from the Judgment Debtor as at the date the garnishee nisi was served on him. See Tapp V Jones (1975) LR 10 QB 591 at 593; & Hale V Victoria Plumbing Co. Ltd (1966) 2 QB 746. The Judgment Debtor, having not controverted these depositions, the Lower Court was at all times entitled to act on them. See: Mainstreet Bank Ltd V UBA Plc (2014) LPELR-24118(CA); Matanmi V Dada (2013) LEDLR, (Vol. 2) 618; & Omoregbe V Lawani (1980) 3-4 SC 108 AT 117.

Consequently, after due consideration, I am of the view that the Appellant/ 1st Garnishee effectively showed cause why it should not be made to pay the Judgment Debt due to the Judgment Creditor from the account of the Judgment Debtor. With due deference therefore, I

find that the Lower Court acted in error when it made the garnishee nisi an absolute order against the Appellant/1st Garnishee in the face of the un-controverted evidence adduced by it showing cause why such an order should not have been made. In other words, the garnishee order absolutely made against the Appellant in the Ruling of the Lower Court was made without consideration of and/or regard to the Appellant’s affidavit in opposition to the claim against it, disclosing sufficient cause. I therefore agree with the submissions of learned Counsel for the Appellant that the Lower Court should have averted its mind to the unchallenged evidence before it. Consequently, it is my view that the Lower Court’s evaluation of the evidence before it was deficient as clearly the unchallenged evidence before it was inadequately considered. If the learned trial Judge had properly considered it, he should not have arrived at the conclusion he did. See H.S. Engineering Ltd V S.A. Yakubu Nig. Ltd (2009) 10 NWLR (Pt. 1149) 416; & Ajomale V Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) at 257 at 282-283. For these reasons therefore, the sole issue is resolved in favour

of the Appellant.

Having thus resolved, I find merit in the Appeal. It succeeds and is allowed. Accordingly, the Ruling of the High Court of Adamawa State in Suit No. ADS/50m/2014 between Alhaji Manu Kano V The Government of Adamawa State & 4 others, delivered on 18th November, 2014, wherein it made a Garnishee Order Absolute against the Appellant/1st Garnishee, is hereby set aside. The 1st Garnishee/Appellant is hereby discharged. I make no order as to costs.

SAIDU TANKO HUSAINI, J.C.A.: I agree.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.:

I had the privilege of reading in advance a draft copy of the judgment just delivered by my learned law lord, JUMMAI HANNATU SANKEY, JCA.; with which I am in complete agreement and in which the sole issue arising for determination in this appeal had, in my lords characteristic manner, been dealt with both extensively and brilliantly and impeccably resolved. I shall therefore, only by way of emphasis alone add a few comments of mine.

In law, a Garnishee order absolute is clearly a final order and therefore ought not to be made by the Court lightly or

carelessly or lackadaisically in total disregard to the facts as placed before the Court by the parties. In other words, where a Garnishee ordered to show cause had placed before the Court some materials by way of affidavit to show cause, it is incumbent on the Court to carefully consider the facts as furnished before deciding whether or not to make the Order Nisi Absolute, being a final order leaving in essence nothing more to be judicially determined thereafter in order to render such an order effective and capable of execution. See Union Bank of Nigeria Plc. V. Boney Marcus Ind. Ltd. & Ors. (2005) 13 NWLR (Pt. 943) 654. See also Akinsanya V. United Bank for Africa Ltd. (1986) 4 NWLR (Pt. 35) 273; United Bank for Africa Plc. V. Hon Iboro Ekanem & Anor (2009) LPELR 8428 (CA).

In the appeal, going by the totality, not just an isolated consideration of some, of the contents of the 13 paragraph affidavit to show cause filed and placed before the Court below, together with the contents of Exhibits Z1 – Z5 at pages 97 – 106 of the Record of Appeal, could it be said that the Court below gave due consideration to the case of the

Appellant/1st Garnishee in arriving at its decision to make the order nisi absolute? I certainly do not think so! The order of Court below making the Garnishee order nisi absolute was erroneous and thus in my finding was not a proper exercise of the powers or discretion of the Court below in the circumstances of affidavit and documentary evidence amply furnished before it by the Appellant/1st Garnishee showing just cause why the order nisi should not and ought not be made absolute.

In law, a Garnishee proceeding is one of the means or ways by which judgment is enforced. The Court below was thus under a legal duty to ensure that such a judgment is enforced in line with the provisions of the law governing Garnishee proceedings and to be satisfied that the Garnishee is indebted to the judgment debtor and which sum is liable to be attached in total or part satisfaction of the judgment debt due to the Garnishor. Once, it is clear to the Court, therefore, on the materials placed before it by a Garnishee, that it is not in any way indebted to the judgment debtor or rather that it is the judgment debtor that is indebted to it, that is the end of the matter as no

Court is at liberty to make an order nisi absolute against a Garnishee who is not indebted to the judgment debtor or is rather a creditor also to the judgment debtor. See Wema Bank Plc. V. Brastem Sterr Nigeria Ltd. & Anor (2010) LPELR 9166 (CA). See also Sokoto State Govt. V. Kamdex Nig. Ltd (2004) 9 NWLR (Pt. 878) 345; Re: Diamond Bank Ltd (2002) NWLR (Pt. 795) 120.

It is with the above few comments of mine and for the more detailed reasons adroitly marshalled out in the lead judgment that I too hereby hold that the appeal is meritorious and ought to be allowed. Consequently, I too hereby allow the appeal and shall abide by the consequential orders in the lead judgment.

Appearances

S. N. Nzonzo, Esq.For Appellant

AND

No appearances for 1st to 4th Respondents.For Respondent