ECOBANK NIGERIA PLC v. GUARANTY TRUST BANK PLC & ORS
(2016)LCN/8356(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/L/472/2014
RATIO
APPEAL: THE IMPLICATION OF AN INCOMPLETE RECORD OF APPEAL
The crux of the preliminary objection of the 1st Respondent is with respect to incomplete record of appeal. It is settled law that it is the duty of an Appellate Court not to hear an appeal, based on incomplete records, as same affects the competence of the Court to rehear the matter before it. See EKPEMUPOLO & ORS v EDREMODA & ORS (2009) 8 NWLR (PT 1142) 165 SC; OKOCHI & ORS v ANIMKWOI & ORS (2003) 18 NWLR (PT 851) 1; AULT & WILBORD (NIGERIA) LIMITED v. NIBEL INDUSTRIES LIMITED (supra). PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
PRACTICE AND PROCEDURE: AT WHAT POINT DOES THE GARNISHEE BECOME LIABLE TO THE JUDGEMENT CREDITOR IN REGARD TO JUDGEMENT SUM GIVEN IN HIS FAVOUR
Now, it is settled law that the debt due or accruing to a Judgment Creditor shall be bound in the hands of the garnishee upon service of the garnishee order nisi. This is the clear provision of Section 85 of the Act. Therefore, service of the order nisi and the time upon which same is served on the garnishee is vital for the purpose of ascertaining the moment in which the garnishee becomes liable to the Judgment Creditor with regards to the judgment sum given in his favour. See; UBA PLC v. EKANEM (2010) 6 NWLR (PT 1190) 221. PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
BANKING LAW: CHEQUES; WHETHER THE BANK IS BOUND TO HONOUR A CHEQUE ISSUED BY ITS CUSTOMER AND THE IMPLICATION FOR THE REFUSAL TO HONOUR THE CHEQUE
It is imperative to state that a cheque in strict sense is an order or request for payment and until it is honoured or cleared and the amount stated on it is paid, it is not money. See: H.M.S LTD v. FIRST BANK PLC (1991) 1 NWLR (PT 167) 290. However, in ALLIED BANK (NIG) LTD v. AKABUEZE (1997) 6 NWLR (PT 509) 374 the Supreme Court was emphatic when it held inter alia, that a bank is bound to honour a cheque issued by its customer if the customer has enough funds to satisfy the amount payable on the cheque in respect of the relevant account and refusal to honour the cheque will amount to a breach of contract which will render the banker liable in damages.
Therefore, if as at the time the cheque was presented for payment, and it was confirmed that there was sufficient fund in the account and if the Order had not been served on the Appellant, the Appellant is under strict obligation to honour same for payment in order to avoid liability. PER. ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
Before Their Lordships
SIDI DAUDA BAGEJustice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
ECOBANK NIGERIA PLCAppellant(s)
AND
1. GUARANTY TRUST BANK PLC
2. CIPHER HAULAGE AND LOGISTICS LTD.
3. MR. OMOTUNDE FAYIGARespondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Ruling of the High Court of Lagos State; coram Coker J., delivered on 12th February, 2014.
On the 10th of June, 2013, judgment was entered against the 2nd and 3rd Respondents as 1st and 2nd Defendants under Order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 as per the endorsement on the 1st Respondent’s Writ of Summons and Statement of Claim dated 13th of September, 2012. By a Motion ex-parte dated 2nd September, 2013, the 1st Respondent commenced Garnishee Proceedings against the Appellant as the 10th Garnishee therein with sixteen other Garnishee Banks. Upon service of Garnishee Order Nisi dated 23rd October, 2013 granted by the lower Court on the Appellant on 4th November, 2013, the Appellant filed Affidavit to show cause dated 18th November, 2013; a Further Affidavit to show cause dated 16th January, 2014 as well as Further and Better Affidavit to show cause dated 16th January, 2014. The learned trial judge delivered a Ruling and granted Garnishee Order Absolute against the Appellant. Aggrieved by the
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decision, the Appellant filed an appeal vide a Notice of Appeal dated and filed 20th March, 2014 on four (4) grounds.
As required by the rules of practice in this Court, briefs of argument were filed by the learned counsel in support of the respective positions of the parties in the appeal. The Appellant’s brief settled by F.B. Odesanya Esq., is dated and filed 23rd September, 2014 but deemed 4th June, 2015. While the Reply brief is dated and filed 4th June, 2015. Three issues were identified by the Appellant for the determination of this appeal thus:
1. Whether in view of the facts contained in all three Affidavits to show cause in this Garnishee Proceedings, the Appellant is entitled under Section 87 of the Sheriff and Civil Process Act to dispute liability to the Judgment Debtors.
2. Whether the funds in the accounts of the Judgment Debtors have been attached by a Garnishee Order Nisi served after two transactions have occurred on the Judgment Debtors account.
3. Whether in view of documentary evidence on the two transactions contained in the three Affidavits to show cause, the Appellant could be said to have colluded with the
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Judgment Debtors.
Respondent’s Brief of Argument is dated and filed 4th April, 2015. It was settled by Lekan Oni Esq., of Benjamin Oni & Associates. A sole issue was nominated for the determination of this appeal thus:
1. Whether having regard, to the record of proceedings and the facts placed before the Court, the learned trial Judge did hear the Appellant on its dispute of liability and facts presented, in respect of same before making the order absolute attaching the funds in the account of the Judgment debtor with the Appellant.
Meanwhile, 1st Respondent vide the Respondent’s brief raised preliminary objection to the hearing of the appeal on the ground, inter alia that the record of appeal is incomplete as it does not contain the record of proceedings before the Court.
Arguing the preliminary objection, 1st Respondent’s counsel submitted that the crux of the Appellant’s appeal is based on the proceedings before the trial Court and whether and what arguments were taken before the trial Court before the order absolute was made in the proceedings. It is the submission of counsel that the record of proceedings before the trial
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Court is not included in the records of appeal, hence incomplete record. He cited CHIEF THOMAS EKPEMUPOLO & ORS v. GODWIN EDREMODA & ORD (2009) 32 WRN 1; ALUKO v OGUNGBEMI (2008) ALL FWLR (PT 937) 179 AT 198; AULT & WILBORD (NIGERIA) LIMITED v NIBEL INDUSTRIES LIMITED (2010) 11 NWLR (PT 1120) 489 AT 496 before urging that the appeal be struck out.
In Reply, Appellant’s counsel contended that the preliminary object raised by the 1st Respondent was incompetent as same was not done via a Motion on Notice as prescribed vide ACB v. APUGO (1995) 6 NWLR (PT 399) 65; TEPSIN v. KYAMWAN (2003) FWLR (PT 149) 1517 thereby urging that the argument of the 1st Respondent as per the preliminary objection be discountenanced.
He alternatively argued as per Order 8 Rule 4 & 5 of the Court of Appeal Rules, 2011 that the Appellant satisfied the requirement of document which shall be contained in the Record of Appeal in line with the provision of Order 8 Rule 7 of the Rules. It is the submission of counsel that the 1st Respondent ought to have filed such other supplementary document as may be necessary for the hearing of the appeal on merit as it is its
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duty thereof. He cited EFFIONG v. IRONBAR (1998) 13 NWLR (PT 582) 367; ADESINA v. ADENIRAN (2002) 6 NWLR (PT 762) 64. Submitting further, Appellant’s counsel submitted that since the garnishee order was made by the trial Court based on affidavit evidence, no issue raised before the lower Court that cannot be located in the record of appeal compiled and transmitted by the Appellant. He referred to ALUKO v. OGUNGBEMI (2008) ALL FWLR (PT 397) 179 at 198, paras E – F. Counsel submitted vide AIGORO v. COMM, L & H KWARA STATE (2012) 11 NWLR (PT 1310) 124, paras E. that counsel should not engage in submission sought to mislead the Court.
The crux of the preliminary objection of the 1st Respondent is with respect to incomplete record of appeal. It is settled law that it is the duty of an Appellate Court not to hear an appeal, based on incomplete records, as same affects the competence of the Court to rehear the matter before it. See EKPEMUPOLO & ORS v EDREMODA & ORS (2009) 8 NWLR (PT 1142) 165 SC; OKOCHI & ORS v ANIMKWOI & ORS (2003) 18 NWLR (PT 851) 1; AULT & WILBORD (NIGERIA) LIMITED v. NIBEL INDUSTRIES LIMITED (supra). It is the
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argument of the 1st Respondent’s counsel that the record of proceedings at the trial Court was not included in the record of appeal and this render the record incomplete. However, it is imperative to note that the proceedings that led to the judgment which resulted in this appeal, being garnishee proceeding, was basically argued on affidavit evidence and issues contained in the written address adopted by the parties and these processes have been included in the record of appeal.
Therefore, I am of the firm view that as it relates to the substance of the appeal before us, the record as compiled by the Appellant is complete. A fortiori, Order 8 Rule 6 of the Court of Appeal Rules, 2011 empowers a Respondent in an appeal to compile and transmit to the Court such additional records which he deems necessary for the disposal of the appeal. The Order states:
?Where the Respondent considers that there are additional records which may be necessary in disposing of the appeal, he shall be at liberty within 15 days of service on him of the records to compile and transmit to the Court such records to be known as the additional records of
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appeal”
Having regard to the foregoing, I hold that the preliminary objection of the 1st Respondent is incompetent and same is hereby dismissed.
In resolving this appeal, I am of the opinion that the argument of counsel on the respective issues be taken together as they all relates to the central issue as to the liability, if any of the Garnishee/Appellant, to the 1st Respondent/Judgment creditor.
Arguing the first issue on behalf of the Appellant, Odesanya Esq submitted that the Sherriff and Civil Process Act, Cap S6 LFN, 2004 is the principal legislation regulating Garnishee Proceedings in the Courts of law in the Federal Republic of Nigeria. He referred to Section 87 of the Act to submit that the Appellants attached as exhibits the statement of the three accounts of the 2nd Respondent (1st Judgment Debtor) to the Affidavit to show cause but that the Judgment Creditor’s counsel merely queried the entries on the Statement of Accounts without filing any processes to contradict or controvert the depositions on the said affidavit to show cause. It is the submission of counsel that the trial Court after evaluation of the Appellant’s
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Affidavit dated 16th January, 2014 wrongly found, despite the proof of the time stamp on the funds transfer document of 4th November, 2013 in the sum of N720,000.00 to one Tobi Fayiga and the Appellant?s cheque in favour of Ayotunde Awosika in the sum of N500,000.00 presented for clearing through Union Bank since the 1st day of November, 2013 at the branch of the Appellant’s Ikorodu Road, Onipanu, Lagos three (3) days before the service of the Garnishee Order Nisi at the Head Office of the Appellant. Counsel argued that the findings of the trial Court is perverse vide NIGERIA HOTELS LTD v. NZEKWE (1990) 5 NWLR (PT 149) 197, paras E – F; NDIC v IFEGWU (2003) 1 NWLR (PT 800) 79 – 80, paras H – A. He concluded that this Court should interfere with the finding of the trial Court vide EBBA v. OGODO (1984) 1 SCNLR 372; MICHAEL OJIBAH v. UBAKA OJIBAH (1991) 5 NWLR (PT 191) 296 at 314.
?On issue two, citing Section 83(1) and 85 of Sherriff and Civil Process Act, counsel argued that whatever debit if any due or accruing to the Judgment Debtor shall be bound in the hands of the garnishee upon service of the garnishee order nisi. He cited UBA PLC v EKANEM
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(2010) 6 NWLR (PT 1190) 221 – 222, paras H A. It is the submission of the Appellant’s counsel that the Appellant established via Affidavit documentary evidence, the nature and the exact time of the two transactions on the account of the 2nd Respondent (1st Judgment Debtor) well before the service of the Garnishee Order Nisi. Citing F.M.B.N LTD v DESIRE GALLERY LTD (2004) 13 NWLR (PT 891) 540 – 541, paras E – A, 541 – 642, paras B ? D, A – C, he further argued that the Judgment Creditor’s counsel did not controvert or contradict these facts by way of any process or documents and that the service of the garnishee order nisi could only bind the credit balance remaining in the 2nd Respondent’s account less the debit balance in the third account based on the Appellant’s right to combine, consolidate and set-off the credit balance with the debit balance.
On issue three, Odesanya Esq. contended that the standard of proof of any allegation of crime even in a civil action must be beyond reasonable doubt and that he who asserts must prove. He relied on OTEKI v. STATE (1986) ANLR 321; ONUOHA v. THE STATE (1989) NWLR (PT 101) 23 at 32; C.B.N v. AUTO IMPORT
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EXFORT (2013) 2 NWLR (PT 1337) 131, paras A – B. Referring to the definition of the word ‘collusion’ as per the Black’s Law Dictionary, 8th Edition, Counsel submitted that the 1st Respondent’s counsel failed to establish or proof the facts of collusion between the Appellant, the 2nd and 3rd Respondents as provided in Section 121(a) of the Evidence Act. Citing Section 131 and 135(f) of the Evidence Act, he contended that the burden placed on the 1st Respondent was not discharged to enable any shift on the Appellant to disprove the facts of collusion with the 2nd and 3rd Respondents in this case. He urged that this issue be resolved in the Appellant’s favour.
Arguing the sole issue formulated on behalf of the 1st Respondent, counsel submitted that contrary to issue one raised by the Appellant and argument made in respect thereof, the Appellant is entitled to dispute liability and did dispute liability in the garnishee proceedings and that was the essence of the three Affidavits filed on its behalf. He noted that the relevant question is whether the Appellant disputed liability to the satisfaction of the lower Court.
?It is the submission of counsel that
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the Appellant was served with the order nisi of Court on 4th November, 2013 at 3:07pm and filed an Affidavit to show cause dated 18th November, 2013 denying liability to the 1st Judgment Debtor and exhibiting the statement of accounts of the Judgment Creditor; that the exhibits attached to the affidavit contradicted the averments in the affidavit in that they showed that there were transactions on the account of the 1st Judgment Debtor with the Appellant on the date of service of the record; that the Appellant subsequently filed two affidavits wherein it was alleged that they were served with the order nisi at 3:07pm at the close of work, which according to the 1st Respondent’s counsel, raised a further contradiction as it is common knowledge that banks close at 4pm and also that the last affidavit did not prove the time of the transaction. Counsel contended that the exhibits attached to the further and better affidavit filed by the Appellant on 16th January, 2014 showing two transaction that were done on 4th November, 2013 did not show when the transaction took place and that the learned trial judge not being satisfied that the transactions took place before
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the service of the order nisi made the order absolute against the Appellant.
Citing EKITI STATE GOVERNMENT v. ASHAOLU (2011) 15 WRN 112; UNION BANK OF NIGERIA PLC v BONEY MARCUS IND. LTD (2005) 7 SSC (PT 11) 70, he submitted that the Appellant had not produced sufficient reason as to why the order absolute should not be made as the Appellant did not show that the transactions occurred before the receipt of the order nisi. He relied on MRS SUSAN OLAPEJU SIMISOLA OLLEY v. HON OLUKOLU GANIYU TUNJI & ORS (2013) 12 WRN 24 AT 54; (2012) LPELR 7911 (CA) to submit that the proceedings before the trial Court did not contradict Section 87 of the Sherriff and Civil Process Act and Order VIII Rule 8 of the Judgment Enforcement Rules and that as the Affidavits filed by the Appellant were self contradictory, there was no need for the Respondent to file a Counter Affidavit or for the Court to allow oral evidence to be called thereon.
In response to Appellant’s issue two, Counsel submitted that the issue is of no consequence because the Appellant in all its Affidavits filed and exhibits attached did not show that the monies attached were not in the 1st Judgment
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Debtor’s accounts at the time of service of the Order Nisi.
On issue three, it is the submission of counsel that the trial Court did not in its judgment hold that the Appellant colluded with the 2nd and 3rd Respondents. Referring to paragraph 2 and 5 of the judgment of the trial Court at page 39 of the record, counsel submitted that collusion did not form the basis of the Court’s ruling. Submitting further, he noted that not every error in a judgment can form the basis for the overturning of judgment vide HON ZAKAWANU I. GARUBA & ORS v HON EHI BRIGHT OMOKHODION & ORS (2011) 33 WRN 1 before urging that this appeal be dismissed.
In Reply, counsel cited Section 123 of the Evidence Act and EKIMARE v. EMOHONYON (1985) 1 NWLR 170 at 185 to submit that an admitted fact is not a fact in issue. Relying on NGORO v COMM, L & H KWARA STATE (2012) 11 NWLR (PT 1310) 129, paras A – B; EIGBE v N.U.T (2006) 16 NWLR (PT 1005) 244; GABRIEL v STATE (1989) 5 NWLR (PT 122) 468, paras G – G, counsel submitted that the 1st Respondent did not contradict or join issues with the Appellant on the facts of the time the two transactions on the 2nd Respondent were
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concluded. Citing SARAKI v. KOTOYE (1992) 3 NSCC 331; CCB LTD v NWOKOUYA (1998)1 9 NWLR (PT 564) 98; REBUBLIC BANK LTD V. CBN (1998) 13 NWLR (PT 589) 306; FMBN v NDHC (1999) 2 NWLR (PT 591) 333; G.E.B PLC v ODUKWU (2009) 12 NWLR (PT 1168) 72, paras A – C; NDIC v OKEM ENTERPRISES LTD (2004) 10 NWLR (PT 880) 107, counsel submitted that grounds of appeal are formulated against the ratio decidendi of the decision of the lower Court which is what the Appellant has done in the instant appeal by challenging the decision of the lower Court inter alia on the issue of collusion. He urged that the appeal be allowed.
The focal point in this appeal is the consideration of the effect of some provisions of the Sherriff and Civil Process Act, particularly with respect to Garnishee proceedings as it relates to the facts and circumstances of this case. However, we are more concerned herein with that aspect of the provision of the Act with respect to the liability of a Garnishee and at what time a debt becomes garnished in its hand.
Section 85 of the Sherriff and Civil Process Act, Cap 56, Laws of Federation of Nigeria, 2004 states:
?Service of an order that a debt
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due or accruing to the Judgment debtor stall be attached, or notice thereof to the garnishee, in such manner as the Court may direct, shall bind the debt in his hands.?
In the instant case, the Appellant as garnishee filed three affidavits to show cause dated 18th November, 2013; 25th November, 2013 and 16th January, 2014 respectively. While referring to paragraph 6 and 7 of the affidavit of 16th January, 2014, the trial Court held at page 39 of the record:
?As rightly observed by Mr. Lekan Oni, said Counsel for the Judgment Creditor, this Court finds as follows, having perused the Exhibits annexed thereto especially the Funds Transfer No. 0890908 & the copy of the cheque issued on the account of 1/11/13 that:
1. Firstly, there is no evidence of these transactions being prior to the service of this Court’s Order.
2. Secondly, the cheque dated 1/11/13 shows clearly that same was also presented for clearing on the same 4/11/13.
It is the said Counsel Mr. Oni’s position that the 10th Garnishee clearly colluded with the Judgment Debtors to spirit out the funds & the Order of Court to be made nonetheless.
The Court
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is highly persuaded by this position in the face of the documentary evidence before it. More importantly, there is no deposition that these Judgment Debtors are no longer customers of the 10th Garnishee – Ecobank Plc.
In the absence of cogent evidence to show that these transactions were effected before the Order of Court were served attaching those funds, the Garnishee is obliged to pay over the money in that account as at the date of the service of the said Order, clearly in the account of the Judgment Debtor & having been attached.”
The question then is whether the trial Court was right when he held that the Appellant was unable to show that the transactions that were effected on 4th November 2013 were done before the Order of Court were served on the Appellant. Apparently, the contention of the Appellant in this appeal is that having filed the three affidavits to show cause, the Court ought to have determined its liability in the manner as provided under Section 87 of the Sherriff and Civil Process Act.
Now, it is settled law that the debt due or accruing to a Judgment Creditor shall be bound in the hands of the garnishee upon
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service of the garnishee order nisi. This is the clear provision of Section 85 of the Act. Therefore, service of the order nisi and the time upon which same is served on the garnishee is vital for the purpose of ascertaining the moment in which the garnishee becomes liable to the Judgment Creditor with regards to the judgment sum given in his favour. See; UBA PLC v. EKANEM (2010) 6 NWLR (PT 1190) 221. In the instant case, the Appellant as earlier noted, filed three Affidavits to Show Cause. Of relevance in this respect is that Further and Better Affidavit dated 16th January, 2014, deposed by one Adesuwa Isokpan, a Legal Officer in the Regulatory Unit of Ecobank Nigeria Ltd (sic). The deponent deposed thus:
a. That I have previously deposed to an Affidavit to show cause dated, the 18th November, 2013 and a Further Affidavit to show cause dated 25th November, 2013 in this matter.
b………..
c. That the Order Nisi in this suit was served on Ecobank Nigeria Limited, on the 14th of November, 2013 at 3:07pm almost at the close of work as can be evidenced on the time stamp of the Bank in the Order Nisi. The Order Nisi served on Ecobank Nigeria Limited on the
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4th November, 2013 is hereby attached and marked as Exhibit BA1.
d. That the first withdrawal made on the account on the 4th of November, 2013 which is the funds transfer made to one Mr. Tobi Fayiga to the tune of N720,000,00 (Seven Hundred and Twenty Thousand Naira) was concluded, at 2:59pm, minutes before the Order Nisi was served, on the Bank as can be evidenced on the time stamp on the funds transfer slip. The copy of the funds transfer slip with number 0890908 dated the 4th of November, 2013 is hereby attached and marked, as Exhibit BA2.
e. That the second withdrawal from the account of the Judgment debtor on the 4th of November, 2013 is the clearing of the cheque for the sum of N500,000.00 (Five Hundred, Thousand Naira) in favour of one Mr. Ayotunde Awosika. The same cheques had been deposited earlier in the Bank on the 1st November, 2013 three (3) days before the Order Nisi was served on the bank. The copy of the Ecobank Nigeria Limited Cheque with number 16819567 dated the 1st of November, 2013 is hereby attached and marked Exhibit BA3.
f. That these attached documents show that the transactions were concluded, before 3:07pm on the
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4th of November, 2013, the time and date the Order Nisi in this suit was served on the Bank.?
My Lords, it is apparent from the above depositions and as noted by the trial Court via proof of service of the Sherriff of the trial Court that the Order Nisi was served on the Appellant on the 4th day of November, 2013 at 3:07pm. This fact remains unchallenged. The learned trial judge had held that the transactions alleged by the Appellant to have taken place before the service of the Order was not supported by cogent evidence.
?From paragraph 6 of the above affidavit, the deponent deposed that a withdrawal made on the account on the 4th of November, 2013 which is the funds transfer made to one Mr. Tobi Fayiga to the tune of N720,000,00 (Seven Hundred and Twenty Thousand Naira) was concluded at 2:59pm. I have taken a careful perusal of the copy of the funds transfer slip with number 0890908 dated the 4th of November, 2013 to be found at page 36 of the record and it is evident on the face of the document that there is a time stamp of 2:59pm, about eight minutes before the service of the Order Nisi at 3:07pm. A fund transfer ordinarily is done within
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minutes the instruction is given. This piece of evidence was neither contradicted nor controverted by the Judgment Creditor; it is deemed admitted. Therefore, the trial Court erred when it held that the Appellant failed to show by cogent evidence the time when the sum of Seven Hundred and Twenty Thousand Naira (N720,000.00) was transferred from the account of the judgment debtor on the 4th day of November, 2013.
With respect to the second withdrawal by cheque made on the same day, that is 4th November, 2013, I have also gone through the entire record before this Court, particularly the Exhibits attached to the Affidavits to show cause filed by the Appellant. At page 37 of the record is a copy of the cheque drawn in favour of one Mr. Ayotunde O. Awosika dated 1st of November, 2013. The Appellant has stated that the cheque was presented for clearing on the same day. It is discernible from page 37 of the record that the cheque is dated 1st November, 2013, and apparently presented for payment at Union Bank Plc on the same date. From the record, particularly at page 29 thereof, it is clear that the cheque was presented at another bank, that is, Union Bank
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Plc. Although there is nothing on record showing that the cheque was presented on the 4th of November, 2013, I take judicial notice of the fact that the clearing process of a cheque at the relevant time entails the tendering of the cheque and same is processed until it is cleared for payment, thereby resulting in about 3 days between the date of presentation of the cheques till payment is made thereon.
It is imperative to state that a cheque in strict sense is an order or request for payment and until it is honoured or cleared and the amount stated on it is paid, it is not money. See: H.M.S LTD v. FIRST BANK PLC (1991) 1 NWLR (PT 167) 290. However, in ALLIED BANK (NIG) LTD v. AKABUEZE (1997) 6 NWLR (PT 509) 374 the Supreme Court was emphatic when it held inter alia, that a bank is bound to honour a cheque issued by its customer if the customer has enough funds to satisfy the amount payable on the cheque in respect of the relevant account and refusal to honour the cheque will amount to a breach of contract which will render the banker liable in damages.
Therefore, if as at the time the cheque was presented for payment, and it was confirmed that there
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was sufficient fund in the account and if the Order had not been served on the Appellant, the Appellant is under strict obligation to honour same for payment in order to avoid liability.
Moreover, a cursory look at statement of account, particularly the entry on the 4th of November at page 29 of the record indicates quite clearly that the cheque was in fact cleared before the fund transfer of the sum of Seven Hundred and Twenty Thousand was done at 2:59pm. I am therefore inclined to agree with the Appellant’s counsel that the transaction was done before 3:07pm when the order nisi was served on the Appellant (so that the money becomes attached). The trial Court seems not to have countenanced this fact notwithstanding that there is no evidence to the contrary by the Judgment creditor to show that the transaction was not concluded as at the time of service of the Court order.
The question then is to what is the extent the Appellant liable to the judgment creditor, having regard to the foregoing? From the Affidavit dated 18th November, 2013, Appellant deposed that the Judgment Creditor maintained three accounts with it via account nos. 352201385, 3522011474
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and 4442010437. To this extent, Appellant’s counsel argued that it is entitled to combine or consolidate two of the three accounts in credit balance and set-off the credit sum in the third account. While the Statement of accounts relating to the first two accounts viz 352201385 and 3522011474 were exhibited in the record at pages 16 to 30, the statement of accounts relating to account no. 4442010437 which the Appellant alleged is in debit of the sum of Ninety Thousand, Two Hundred and Ninety Eight Naira Five Kobo (N92,298.05) was not ipso facto exhibited. The Appellant has therefore not discharged the burden which rests on it in this regard. See ADEGOKE v. AGBOOLA (1992) 5 NWLR (pt 242) 410.
Having regard to foregoing, it is obvious that since the Appellant is not denying the fact of indebtedness to the 1st Judgment Debtor as per the fact that it maintained an account with it, it is safe to conclude that the Appellant having been able establish that only the sum of one Hundred Thousand, Two Hundred and Fourteen Naira and Sixteen Kobo (N100,214.26) as well as the sum of Three Hundred and Twenty Five Naira and Twenty Three Kobo (N325.23) found in account
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nos. 352201385 and 3522011474, same are attachable and binding in the hands of the Appellant as at the time of service of the order nisi.
On the whole, the appeal is meritorious and is hereby allowed. The Ruling of COKER, J delivered on 12th day of February, 2014 is hereby set aside. By virtue of the power conferred upon this Court under Section 16 of the Court of Appeal Act 2011, I hereby make a Decree Absolute in respect of the sum of One Hundred Thousand, Two Hundred and Fourteen Naira and Sixteen Kobo (N100,214.26) as well as the sum of Three Hundred and Twenty Five Naira and Twenty Three Kobo (N325.23) standing to the credit of the Judgment Debtors Account with the Appellant in account nos. 352201385 and 3522011474 as at the 4th day of November, 2013 as per the statement of Account annexed to the Affidavit to show cause of 18/11/13. Same must be paid immediately to satisfy the Judgment sum as per the trial Court’s judgment of 10/6/13. No order as to costs.
SIDI DAUDA BAGE, J.C.A.: I was privileged to read in draft a copy of the very illuminating judgment just delivered by my learned brother Abimbola Osarugue
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Obaseki-Adejumo, JCA, which I agree completely with the views expressed and the conclusion reached in the lead judgment. My learned brother has efficiently resolved the pertinent issues and I have nothing extra to add.
On the whole, the appeal is meritorious and is also hereby allowed by me. I abide by the consequential order made in the judgment. No order as to costs.
CHINWE EUGENIA IYIZOBA, J.C.A.: I read before now the judgment just delivered by my learned brother, A.O. OBASEKI-ADEJUMO JCA. He has exhaustively dealt with the issues. I agree with his reasoning and conclusions.
The appellant in its affidavits deposed to the exact time of service of the garnishee order nisi. The debits in the account of the 2nd respondent were mode before the service of the order nisi on it.
Having discharged the onus on it, the learned trial judge erred in granting the garnishee order absolute without taking into reckoning funds of ready disposed of. I agree that the appeal has merit. I also allow the appeal. I abide by all the consequential orders in the lead judgment including the order as to costs.
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Appearances:
F. B. ODESANYA WITH HIM, ESTHER DEJE-OJOMOFor Appellant(s)
LEKAN ONIFor Respondent(s)
Appearances
F. B. ODESANYA WITH HIM, ESTHER DEJE-OJOMOFor Appellant
AND
LEKAN ONIFor Respondent
