THE BAM MULTIPURPOSE COOPERATIVE SOCIETY LIMITED v. FIRST BANK (NIGERIA) PLC & ANOR
(2019)LCN/13678(CA)
In The Court of Appeal of Nigeria
On Monday, the 22nd day of July, 2019
CA/J/38/2017
RATIO
GARNISHEE PROCEEDINGS: TERMINAL BENEFITS: MEANING
Having said that, I should point out, first, that terminal benefits due to the 2nd respondent from the Garnishee, if any and due to him, could be properly described as debt within the meaning of Section 83(1) of the Sheriff and civil Process Act and so amenable to Garnishee proceedings. PER BOLOUKUROMO MOSES UGO, J.C.A.
JUSTICES
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
THE BAM MULTIPURPOSE COOPERATIVE SOCIETY LTD Appellant(s)
AND
1. FIRST BANK (NIG.) PLC
2. MR. I.O. UKEJE Respondent(s)
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Bauchi State High Court of 18/03/2016 discharging, its Garnishee Order Nisi requiring 1st respondent order to show cause, on the ground that 1st respondent had shown sufficient cause having deposed on oath and shown that the money standing to the credit of the 2nd Respondent/Judgment Debtor?s account No. 2004737333 is not sufficient to satisfy his judgment to appellant.
Second respondent who was a staff of the Garnishee/1st respondent at all material times to the suit but later retired from its service, having served the requisite number of years and so retirement benefits, obtain loan from appellant, a voluntary co-operative society of which he was a also a member, but defaulted in payment. Appellant thus proceeded against him for recovery of its debt by commencing garnishee proceeding against his former employer, the first respondent, and obtained a Garnishee Order Nisi in which the lower Court ordered thus:
1. That an order of Decree Nisi is hereby made attaching all the monies and all
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terminal or retirement benefits of the judgment debtor/Respondent which are accruable from the garnishee (First bank (Nig.) Ltd) or in her custody for the interest of the judgment Debtor/Respondent to satisfy the total judgment sum of ?268,809.46 (Two Hundred and Sixty-Eight Thousand, Eight Hundred and Nine Naira, Forty-Six Kobo) in favour of the judgment Creditor/Applicant.
2. That an order is hereby made directing the garnishee to use the pension funds or any other entitlement of the judgment of the judgment Debtor/Respondent which is in their custody for the purpose of satisfying any judgment sum in the total sum of ?268,809.46 (Two Hundred and Sixty-Eight Thousand, Eight Hundred and Nine Naira, Forty-Six Kobo).
3. That an order is hereby made directing the Garnishee to immediately pay the judgment debt of ?268,809.46 (Two Hundred and Sixty-Eight Thousand, Eight Hundred and Nine Naira, Forty-Six Kobo) into the judgment creditor?s bank account with bank account details: Access Bank, Account Name: the Bam Account Multipurpose Co-Operative Society Ltd, Account No. 0037917722.
?Upon service of the
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Order Nisi on 22/12/2015, the first respondent caused filed an affidavit where it deposed that:
1. That it was served with the order nisi of the Court on 22/12/2015.
2. That on being served with the order it searched through its database and discovered that the judgment debtor maintains Account No. 2004737333 which account is domiciled with the branch.
3. That, however, as at 22/12/15, the judgment debtor?s account stands at ?916.53 as clearly depicted in its statement of account attached herewith as exhibit A.
4. That he knows as a fact that there is no money in the judgment debtor?s account to be attached in satisfaction of the judgment debt.
It is in the light of these averments the trial judge held that 1st respondent had shown sufficiently that second respondent did not have sufficient funds with it and consequently discharged its order Nisi of attachment against it. Appellant is dissatisfied with that order of the lower Court and has brought the instant appeal. It formulated a sole issue thus for us to determine:
Whether or not the
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affidavit to show cause filed by the 1st respondent addressed the issues raised in the order nisi served on her and was sufficient to warrant a discharge of the said order Nisi.
It argues that the Garnishee Order Nisi of the lower Court did not ask for attachment of 2nd respondent?s account No. 2004737333 with Garnishee 1st Respondent but his terminal and retirement benefits as a former staff with 1st Respondent, and since 1st respondent in its affidavit to show cause did not deny having his said terminal and retirement benefits and did not even address those issues, the trial judge was wrong in not making his earlier Garnishee Order Nisi absolute to attach the said terminal benefits of the second respondent/ judgment debtor.
In reply, the Garnishee/1st respondent first identified a single issue for determination thus:
Whether or not the Respondent/Garnishee was entitled to the judgment of the trial Court discharging her as garnishee in the matter?
She then submitted that the order discharging her was properly made by the lower Court; that the law is that it is only debts that can be attached in a garnishee proceeding, which in this
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case is the balance in 2nd respondent?s/judgment debtor?s bank account and since the funds were so insignificant in relation to the judgment debt in issue, the trial judge was correct in discharging the Order Nisi more so when appellant did not file a counter affidavit to contradict its averments that there were no funds in the judgment debtor?s account. The Court is bound to act on affidavit that is not challenged as the lower Court did, she submitted.
Replying on points of law and citing dicta in NEKA v. AC.B. (2004) 1 SCNJ 193 @ 212 (S.C.), appellant argued that it is not in all cases that the duty to file counter affidavit arises, that in this case where 1st respondent?s counter affidavit did not meet the demands of the Order Nisi served on him to show cause, namely whether it was owing 2nd respondent terminal benefits, it was not obliged to file a counter affidavit.
RESOLUTION
I shall in determining this appeal adopt the sole issue of the Respondent, namely:
Whether the Respondent/Garnishee was entitled to the judgment of the trial Court discharging her as garnishee in the matter
That issue in my opinion
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embraces the issue of appellant of whether the affidavit to Show Cause that was filed by the 1st respondent addressed the issues raised in the order Nisi served on her and same was sufficient to warrant a discharge of the said order Nisi.
Having said that, I should point out, first, that terminal benefits due to the 2nd respondent from the Garnishee, if any and due to him, could be properly described as ?debt? within the meaning of Section 83(1) of the Sheriff and civil Process Act and so amenable to Garnishee proceedings. But having perused the records of appeal, however, it appears to me that what led to the discharge of the Garnishee order Nisi by the trial Judge is ineffective communication by appellant to 1st Respondent/Garnishee of the scope of its application. For while the Order Nisi that was granted by the lower Court on appellant?s motion ex-parte as shown at p.17 of the Records clearly included attachment of the terminal benefits due to the judgment debtor from the Garnishee, the Garnishee Order served on the Garnishee/1st Respondent as reflected at pages 18 & 19 of the Records (which Order suggests that it was simply
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copied from Form 26 of the First Schedule of Sheriffs and Civil Process Act with necessary amendments) made no reference to attachment of terminal benefits of 2nd respondent/Judgment Debtor from his former employer, the Garnishee. It merely states that 2nd respondent/Judgment Debtor was indebted to appellant in the sum of ?268,809.46 as judgment debt obtained against him by appellant; that appellant had filed an affidavit stating that the Garnishee/1st Respondent is indebted to 2nd respondent/Judgment Debtor in that sum, and that the Garnishee/1st Respondent should “show Cause why an order should not be made upon her for the payment of the debts and owing or accruing from her to the Judgment Creditor/Appellant or so much thereof as will satisfy the debt due under the said judgment order.? It is in reply to that Garnishee Order served on her that the Garnishee/1st Respondent filed her Affidavit to Show Cause showing Account No. 2004737333 of 2nd respondent as having only an insignificant sum of ?918.53K. Unfortunately, appellant did not also deem it necessary to file a Reply Affidavit to draw her attention and that of the Court to the fact that
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the ?debt? sought to be attached included the terminal benefits of 2nd respondent and not just funds in its account with her; it did not also frontally remind the Court of that fact during the two-day argument of the Order to show Cause, which argument spans pages 23 to 26 of the records. If it had done that, the fact of whether the judgment Creditor was entitled to terminal benefits from the Garnishee and whether such benefits if any had not been already paid, and if not paid whether it was due for payment and so constitutes a debt attachable under Section 83(1) of the Act would have all been trashed out. As it stands, it is difficult to tell whether there were indeed terminal benefits from Garnishee to 2nd respondent and such were due for payment as to constitute a debt that can be attached.
?
Given that omission on appellant?s part and the contents of the only Garnishee Order Nisi served on 1st Respondent as shown in the records, I find it difficult to fault the way the Garnishee proceeding ended in the lower Court. In the event, I hereby dismiss this appeal. Parties shall bear their costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the advantage of reading before now the judgment delivered by my brother BOLOUKUROMO MOSES UGO, JCA. I agree with the conclusion reached thereat in dismissing the appeal.
No order as to cost.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, BOLOUKUROMO MOSES UGO, JCA. just delivered.
I agree with his reasoning and conclusion reached dismissing the Appeal.
I also dismiss the Appeal.
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Appearances:
F. Z. Kaatpo Esq., for M.A. Tsuwa Esq.For Appellant(s)
Ejembi Eko Ejembi Esq. (with him I.W. Zom Esq.) for 1st respondent.
2nd Respondent is unrepresented.For Respondent(s)
Appearances
F. Z. Kaatpo Esq., for M.A. Tsuwa Esq.For Appellant
AND
Ejembi Eko Ejembi Esq. (with him I.W. Zom Esq.) for 1st respondent.
2nd Respondent is unrepresented.For Respondent
