POLARIS BANK LIMITED v. SAMAILA AHMADU GUMAU & ORS
(2019)LCN/13655(CA)
In The Court of Appeal of Nigeria
On Monday, the 11th day of March, 2019
CA/J/386/2017
RATIO
GARNISHEE PROCEDINGS: DEFINITION
Now, garnishee proceedings are a process of enforcing a money judgment by the seizure or attachment of debts due and accruing to the judgment debtor, which forms part of his property in the hands of a third party for attachment. They are separate and distinct proceedings and are governed strictly by the provisions of the Sheriffs and Civil Process Act United Bank for Africa Plc Vs Ubokulo (2009) LPELR 8923(CA), Central Bank of Nigeria Vs Okeb Nigeria Ltd (2014) LPELR 23162(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801(CA).PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
GARNISHEE: WHETHER THE GARNISHEE MUST APPEAR IN COURT AND CONSEQUENCE OF NON APPEARNACE
The garnishee must appear before the Court. If he does not appear in obedience to the order nisi or does not dispute liability, the Court may then make the order nisi absolute pursuant to the provisions of Section 86 of the Sheriffs and Civil Process Act Ndubuisi Vs Jopanputra: In Re Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120, Sokoto State Government Vs Kamdex (Nig) Ltd (2004) 9 NWLR (Pt. 878) 345, Purification Techniques (Nig) Ltd Vs Attorney General of Lagos State (2004) 9 NWLR (Pt 879) 665, Pipeline and Products Marketing Company Ltd Vs Messrs Delphi Petroleum Incorporation (2005) 8 NWLR (Pt 928) 458, Denton-West Vs Muoma (2008) 6 NWLR (Pt 1083) 418, Nigerian Telecommunications Plc Vs ICIC (Directory Publishers) Ltd (2009) 16 NWLR (Pt 1167) 356 and First Inland Bank Plc Vs Effiong (2010) 16 NWLR (Pt. 1218) 199. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
GARNISHEE PROCEEDINGS: AFFIDAVIT TO SHOW CAUSE
Where a garnishee appears in Court in obedience to the garnishee order nisi and files an affidavit to show cause disputing liability, the Sheriffs and Civil Process Act provides what should happen. It says in its Section 87 that:
If a 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 has been interpreted by the Courts as containing the options available to a trial Court in resolving a situation where a garnishee disputes liability see the cases of Nigeria Hotels Ltd Vs Nzekwe (1990) 5 NWLR (Pt 149) 187, United Bank of Africa Plc Vs Societe Generale Bank Ltd (1996) 10 NWLR (Pt 478) 381, Guaranty Trust Bank Plc vs Union Bank of Nigeria Plc (2007) All FWLR (Pt 374) 377, Fidelity Bank Plc Vs Okwuowulu (2013) 6 NWLR (Pt 1349) 197. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
GARNISHEE PROCEEDINGS: WHAT THE COURT CAN DO WHEN A GARNISHEE APPEARS IN OBEDIENCE TO A GARNISHEE ORDER NISI AND FILES AN AFFIDAVIT TO SHOW CAUSE
Three scenarios have emerged from the interpretation of the Courts as to what a trial Court can do where a garnishee appears in obedience to a garnishee order nisi and disputes liability by filing an affidavit to show cause. The first is that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability fails to condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, the trial Court can proceed to make an order of garnishee absolute, notwithstanding the affidavit to show cause Skye Bank Plc Vs Colombara & Anor (2014) LPELR 22641(CA), Governor of Imo State Vs Ogoh (2015) LPELR 25949(CA), Access Bank Plc Vs Adewusi (2017) LPELR 43495(CA), First Bank of Nigeria Plc Vs Okon (2017) LPELR 43530(CA), Heritage Bank Ltd Vs Interlagos Oil Ltd (2018) LPELR 44801(CA), First Bank of Nigeria Plc Vs Yegwa (2018) LPELR 45997(CA).
The second scenario is that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars and conflict with the facts deposed by the judgment creditor, the trial Court cannot proceed to make a garnishee order absolute and must constitute the question of the liability of the garnishee as an issue to be tried or determined in any manner in which any issue in a proceeding is tried or determined, or he may refer the matter to a referee Central Bank of Nigeria Vs Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, Mainstreet Bank Ltd Vs United Bank for Africa Plc (2014) LPELR 24118(CA), Eco Bank (Nig) Plc Vs Mbanefo & Bros Ltd (2014) LPELR 41106(CA), Total Upstream Nigeria Ltd Vs A.I.C. Limited (2015) LPELR 25388(CA). Order 8 Rule 8(2) of the Judgment Enforcement Procedure Rules provides that in this situation, the Court shall set the issue or question down for hearing and shall direct which of the persons interested shall be plaintiff and which shall be defendant and the parties shall be at liberty to lead evidence Central Bank of Nigeria Vs Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA).
The third scenario is that where a garnishee order nisi is granted on the basis of a general statement of a judgment creditor that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars showing that it has no such funds, and the judgment creditor fails to depose to a further affidavit contesting the assertions of the garnishee, the trial Court may discharge the garnishee on the basis of its deposition Zenith Bank Plc Vs Kano (2016) LPELR 40335(CA), United Bank for Africa Plc Vs Access Bank Plc & Anor (2018) LPELR 44058(CA), All Works Commercial Company Ltd Vs Central Bank of Nigeria (2018) LPELR 45991(CA).
It is within these three scenarios that a trial Court can exercise the discretion given to it under Section 87 of the Sheriffs and Civil Process Act. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
INTERPRETATION OF STATUTES: THE COURTS MUST CONSIDER THE ORDINARY MEANING OF WORDS IN INTERPRETING STATUTES
It is trite that in interpreting a statute, the Court must consider the words used in order to discover their ordinary meaning, and then give use their ordinary meaning as they relate to the subject matter Merill Guaranty Savings & Loans Ltd Vs Worldgate Building Society Ltd (2013) 1 NWLR (Pt 1336) 581, Gbagbarigha Vs Toruemi (2013) 6 NWLR (Pt 1350) 289, Commissioner for Education, Imo State Vs Amadi (2013) 13 NWLR (Pt 1370) 133. It is also elementary that in interpreting a statute, nothing is to be added to or taken from its provisions Attorney General, Federation Vs Attorney General, Lagos State (2013) 16 NWLR (Pt 1380) 249, Federal Republic of Nigeria Vs Bankole (2014) 11 NWLR (Pt 1418) 337. PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
POWER: WHEN AN EXERCISE OF POWER IS STATUTORY IN NATURE , IT IS EXERCISED WITHIN THE LIMITS OF SUCH STATUTES
Now, it is a well settled principle of our jurisprudence and an important requirement of our administration of justice that where the exercise of a power is statutory, such power can only be exercised within the limits prescribed by the statute Sanusi Vs Ayoola (1992) NWLR (Pt 265) 275, Ude Vs Nwara (1993) 2 NWLR (Pt 278) 638; Ogualaji Vs Attorney General, Rivers State (1997) 6 NWLR (Pt 508) 209.PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
GARNISHEE PROCEEDINGS: EFFECT OF SERVICE OF A GARNISHEE ORDER NISI
It is trite that service of a garnishee order nisi binds and attaches the money or funds of a judgment creditor in the hands of the garnishee and it becomes obligatory on the part of the garnishee not to release the money attached by the order unless and until it is directed by the Court to do so and this obligation to obey the Courts order supersedes the garnishees duty to repay the judgment debtor the amount due to him Central Bank of Nigeria Vs Auto Import Export (2013) 2 NWLR (Pt 1337) 80, Eco Bank (Nig) Plc Vs Guaranty Trust Bank Plc (2016) LPELR 40574(CA), First Bank of Nigeria Ltd Vs Jacob Agidi (Nig) Ltd (2018) LPELR 44997(CA).PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICE
HABEEB ADEWALE OLUMUYIWA ABIRUJustice of The Court of Appeal of Nigeria
TANI YUSUF HASSANJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
Between
POLARIS BANK LIMITEDAppellant(s)
AND
1. SAMAILA AHMADU GUMAU
2. ISAH ABDULKAREEM
(Suing for themselves and as representatives of 323 Councilors from all 20 Local Government Councils of Bauchi State who served from the period of 2008-2011)
3. BAUCHI STATE GOVERNMENTRespondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory Rulings of the National Industrial Court sitting in Jos, Plateau State delivered by Honorable Justice R. H. Gwandu in Suit No NICN/JOS/5/2013 on the 2nd of June, 2016 and on the 30th of June, 2016 as well as the Garnishee Order Absolute made by the same Court on the 10th of June, 2016.
The first and second Respondents apparently obtained judgment and interest on judgment against the third Respondent which was the sum of N937,522,216.60 and thereafter commenced garnishee proceedings before the lower Court against nineteen banks, including the Appellant who was the tenth garnishee. The lower Court made an order of garnishee nisi on the 9th of May, 2016 directing all the garnishee banks, including the Appellant, to set aside the said sum of N937,522,216.60 from the monies of the third Respondent in their possession and to show cause why the money should not be paid over to the first and second Respondents. The Appellant was served with the garnishee order nisi and it caused an affidavit to show cause to be deposed on its
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behalf on the 27th of May, 2016 wherein it deposed that their records showed that the third Respondent had two accounts with the Bank Account Number 4030012326 in the name of Bauchi State Government Committee on Land Compensation Air Force Base with a credit balance of N5,939,500.25 and Account Number 4030012735 in the name of Bauchi State Government VAT Account with a credit balance of N244,910,919.56 as at the time of service of the garnishee order nisi.
The first and second Respondents responded to the affidavit to show cause of the Appellant in a further further affidavit in support of the Garnishee Order Absolute deposed to on the 2nd of June, 2016 wherein they stated that as at the 12th of May, 2016 when the garnishee order nisi was served on the Appellant, the third Respondent had a credit balance of N774,910,919.56 in Account Number 4030012735 and they exhibited the statement of account. They deposed that in flagrant disobedience of the garnishee order nisi, the Appellant allowed the third Respondent to make two withdrawals of the sum of N300 Million and N100 Million on the same 12th of May, 2016 and a further withdrawal of the
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sum of N100 Million on the 16th of May, 2016 from the account, Account Number 4030012735, and that the action of the Appellant was a contempt of Court requiring stern deterrence.
In a Ruling delivered on the 2nd of June, 2016, the lower Court stated thus:
As earlier stated the 10th Garnishee (Skye Bank) has filed an affidavit to show that it has in its custody some money belonging to the Judgment Debtor; the 10th Garnishee annexed to the said affidavit exhibits which are statements in relation to the accounts belonging to the Judgment Debtor maintained with the 10th Garnishee. Section 85 of the Sheriffs and Civil Process Act has this to say:
Service of an order that a debt due or accruing to the judgment debtor shall be attached or notice thereof to the garnishee, in such manner as the Court may direct, shall bind such debt in his hands
My understanding of this section is that once an Order Nisi in a garnishee proceeding has been made and the Order is served on a Garnishee(s), the money belonging to the Judgment Debtor which is i
