ACCESS BANK v. OBIEFUNA (2020)

ACCESS BANK v. OBIEFUNA

(2020)LCN/14115(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, March 12, 2020

CA/J/342/2018

Before Our Lordships:

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

ACCESS BANK PLC APPELANT(S)

And

CHIDI OBIEFUNA (Doing Business In The Name And Style Of Chidex Investment Company) RESPONDENT(S)

RATIO

THE PRINCIPLE OF LAW IS THAT HE WHO ALLEGES MUST PROVE

The settled position of the law still is that he who alleges, and not the one who asserts the negative, must prove. That is the prescription of Sections 131(1), 132 and 133 of the Evidence Act 2011. Section 83(1) of the Sheriffs and Civil Process Act pursuant to which Respondent commenced his garnishee proceeding states that:
83(1) The Court may upon the ex-parte 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 to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter 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 subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to 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 costs aforesaid. (Italics mine). PER UGO, J.C.A.

WHAT IS A GARNISHEE PROCEEDINGS?

OPTIONS AVAILABLE TO A TRIAL COURT IN RESOLVING A SITUATION WHERE A GARNISHEE DISPUTES LIABILITY

Now, where a garnishee appears in Court in obedience to the garnishee order nisi and files an affidavit to show cause disputing liability, as in the instant case, 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 ABIRU, J.C.A.

WHEN IS THERE SAID TO BE A DISPUTE OF LIABILITY BY A GARNISHEE?

The first question that arises for resolution is when is there said to be a dispute of liability by a garnishee and which requires further enquiry under Section 87 of the Sheriffs and Civil Process Act? Is it once a garnishee appears to a garnishee order nisi and files an affidavit simplicifer to show cause? Or is it where a garnishee files an affidavit to show cause dovetailing on specifics and the facts deposed therein are countered or contested by the judgment creditor in a further affidavit? Or is it where a garnishee files an affidavit to show cause dovetailing of specifics, whether or not the judgment debtor counters those facts in a further affidavit? The position of case law seems to put forward three different scenarios. Firstly, 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 does not condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, there is no dispute of liability warranting further enquiry under Section 87 of the Sheriffs and Civil Process Act, and the Court can go ahead and make an order of garnishee absolute — 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). In other words, the garnishee must make out a prima facie case in favour of an order for an issue to be tried —Central Bank of Nigeria Vs Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA).
Secondly, 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, there is a dispute of liability warranting the use of Section 87 of the Sheriffs and Civil Process Act – 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).
The third scenario is 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, a dispute as to liability warranting the use of Section 87 of the Sheriffs and Civil Process Act will only arise where the judgment creditor deposes to a further affidavit contesting the assertions of the garnishee, otherwise the garnishee would be discharged on the basis of its deposition -Zenith Bank Plc Vs Kano (2016) LPELR 40335(CA), Eco Bank Nigeria Limited Vs Udofia (2018) LPELR 45164(CA), All Works Commercial Company Ltd Vs Central Bank of Nigeria (2018) LPELR 45991(CA). This is in furtherance of the principle that where specific facts in a response affidavit are not covered by the depositions in the original affidavit, the party must file a further affidavit to counter those specific facts, otherwise they will be deemed admitted – Badejo Vs Federal Ministry of Education (1996) 8 NWLR (Pt 464) 15, Dana Airlines Ltd Vs Yusuf (2017) LPELR 43051(CA), Yandy Vs Alhaji Umar Na Alhaji Lawan & Sons Ltd (2018) LPELR 45634(CA), Akiti Vs Oyekunle (2018) LPELR 43721 (SC). PER ABIRU, J.C.A.

BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from a Garnishee Order Absolute granted by the High Court of Plateau State on 30/5/2018 against appellant for what that Court considered appellant’s indebtedness to its customers Hoffman & Danja Ltd and Mr. Danjuma, the duo being judgment debtors of Respondent in the sum of ₦1,800,000.00 and costs of ₦48,850.00 and interest of 10% per annum in a judgment obtained by Respondent against them in the same Plateau State High Court since 26/4/2013. The said judgment debt remaining unpaid by the said judgment debtors, who, according to Respondent, even disappeared midway into the trial so judgment was entered against them upon his sole evidence as P.W.1, Respondent commenced his Garnishee Proceedings for attachment of their funds in their accounts with third persons among which he reckoned was appellant.

It is important to stress that both the Certificate of Judgment and the Enrolled Order of the said judgment of the High Court of Plateau State exhibited by Respondent to his application (ex parte and on notice) all gave the name of his second judgment debtor simply as

Mr. Danjuma. Somehow, however, Respondent commenced his Garnishee proceedings for the enforcement of that same judgment against a Mr. Danjuma Aliyu as second judgment debtor. He did not disclose how Mr. Danjuma in the Judgment he obtained metamorphosed into Mr. Danjuma Aliyu in his processes.

Suffice to say, however, that, as is now commonplace applications for Garnishee Proceedings by judgment creditors in this country as anybody familiar with them will attest, Respondent seems to have done no investigation to ascertain if anybody was actually indebted to his aforementioned judgment debtors before commencing his garnishee application. He simply proceeded on a fishing expedition for garnishees and, in that process, ended up citing in his application virtually all the Banks operating in Jos, Plateau State. He cited as many as thirteen Banks in the process and succeeded, thereby, in putting all thirteen Banks through the cost of briefing lawyers and filing processes to Show Cause why a Garnishee Order Absolute should not be made against them. All he simply alleged in his ex-parte application for Garnishee Order Nisi was sweepingly that:

That I also know that the judgment Debtors are both having various bank accounts with the garnishees.All thirteen Banks responded by filing affidavits to Show Cause.In its own six-paragraphed affidavit, appellant averred that Respondent’s first judgment debtor, Hoffman and Danja Ltd, actually maintained two account Numbers 00165694210 and 0000973928 with it but had zero balance in the first account and just a paltry ₦88.75.00 (Eighty-Eight Naira Seventy-Five Kobo) in the second one.
And for the second judgment-debtor Mr. Danjuma who Respondent renamed Danjuma Aliyu in his application, appellant had this to say in paragraph 4 and of its affidavit:
(4)(d). that the 9th Garnishee Respondent has more than one customer with the name Danjuma Aliyu and their details are as follows:
i. Account Number 0707746953 with balance of 0.00 in the name of Aliyu Danjuma of House No B55, Ogane, Kogi State.
ii. Account Number 0707537469 with balance of 0.00 in the name of Aliyu (actually Ali) Danjuma of Bauchi NYSC, Bauchi State.
iii. Account Number 0723916789 with balance of 0.00 in the name of Aliyu Danjuma of G43, Unguwar Gwari

Chanchaga Minna Bosso, Niger State.
iv. Account Number 0716148605 with balance of 0.00 in the name of Danjuma Aliyu of Sani Ahmad Potiskum Road, Dam, Bauchi State.
A photocopy of each of those statements of account are herein attached as Exhibits ‘AM3’, ‘AM4’, ‘AM5’, ‘AM6’ respectively.
e. that the Garnishee/Respondent cannot confirm if any of the above accounts belongs to the 2nd judgment debtor in this (sic) because the account belong to different individuals.
5. That it will be in the interest of justice to discharge the 9th Garnishee/Respondent in this suit.

Interestingly, despite this clear difference in the addresses of these four account holders of appellant and Respondent’s Mr. Danjuma of APC Plaza, Abuja and appellant’s further contention that it could not confirm if any of its said four accounts belong to Respondent’s 2nd judgment debtor Danjuma because the said accounts belonged to ‘different individuals’, Respondent did not deem it fit to file any further process to counter them or even confirm if any of those four Danjumas of appellant was by

any chance also his own second judgment debtor, Mr. Danjuma whose address he gave only as APC Plaza, Plot 2198, Off IBB Way, Wuse Zone 4, Abuja; and not Bauchi, Kogi or Niger States.

In its ruling on the application, the lower Court (Musa, J.) simply dismissed appellant’s submission on this issue and others and made its earlier Garnishee Order Nisi absolute against appellant while discharging eleven of the other banks Respondent also proceeded against.

Aggrieved by that decision, appellant, as 9th Garnishee before the lower Court, brought the instant appeal. He initially cited in his appeal the Respondent and his aforementioned two judgment debtors as well as the other twelve Banks as Respondents, but later obtained leave of this Court to strike out all the others and pursue his appeal against only Respondent. It formulated the following single issue for us to determine:
Whether from the affidavit evidence (Affidavit to Show Cause) placed before it, the trial Court rightly made the Order Nisi absolute against the appellant.

The Respondent reframed the same issue in his own words with an understandable slant to his case thus: Whether

the trial Court was right when it made the order nisi absolute against the appellant on the ground that the exhibits attached to its affidavit to show cause fell short of a statement of account and did not make frank and full disclosure of the accounts of the Judgment debtors.

In amplification of his sole issue, Appellant submitted that, from all the affidavit evidence that was before the trial Court, particularly its Affidavit to show Cause, the lower Court was wrong to have made the garnishee Order Absolute against it. It relied on relevant paragraphs of its affidavit and its attached statements of accounts as earlier reproduced here and then argued along the lines of its assertions in its affidavit that the said statements of accounts showed that whereas the first judgment debtor, Danja and Hofman Ltd, had two accounts with it with one of the said accounts having zero balance and the other having only ₦88.75, its four Danjuma Aliyus spread across four States of this country have zero balances in their accounts as earlier shown; that Exhibits ‘AM3’, ‘AM4’, ‘AM5’, ‘AM6 also attest to the fact that it was not

indebted to any of its four account-holding Danjuma Aliyus/Aliyu Danjumas as none of them had any funds in their accounts as at the date the Garnishee Order Nisi was served on it, so it ought not to have been the subject of a Garnishee proceeding let alone have a Garnishee Order Absolute made against it.

It also argued that Respondent did not even show that any of its four Danjuma Aliyus/Aliyu Danjumas was its own Mr. Danjuma of APC Plaza, Plot 2198, Off IBB Way, Wuse Zone 4 Abuja.

It further pointed out that neither the contentions to these effect in its affidavit nor the contents of its statements of accounts were challenged by Respondent by way of a counter affidavit so the lower Court ought to have accepted them as the truth. It pointed out that there was even no evidence that the surname of 2nd judgment debtor was Aliyu; that the lower Court simply speculated in arriving at the conclusion that his name was Danjuma Aliyu; that even assuming without conceding that the lower Court was correct in its conclusion that it (appellant) was in a better position to sort out the accounts of the several Aliyus, none of the said accounts had any funds in

them so the Garnishee Order Absolute cannot lie; that the lower Court speculated and was wrong in its conclusion that its statements of accounts – Exhibits AM1, AM2, AM3, AM4, AM5 and AM6 – were mere summaries of what it felt like disclosing and not full disclosure of the said accounts.

On the whole, it asked us to allow the appeal, set aside the lower Court’s order and hold that it showed cause why the Garnishee Order Nisi should not be made absolute against it; that the lower Court’s order amounts to compelling it to furnish its own funds to offset the judgment debtor’s indebtedness to Respondent.

The Respondent/Judgment Creditor shared the opinion of the lower Court that appellant failed to show Cause why the lower Court’s Garnishee Order Nisi should not have been made absolute against it. He submitted that appellants’ Exhibits AM1, AM2, AM3, AM4, AM5 and AM6 were mere summaries and not full statements so it had no duty to file affidavit to counter them. He also submitted that in any case the lower Court’s finding on that issue was not specifically appealed against so it stands for the purposes of the appeal.

An omnibus ground of appeal, which is all appellant has in his Notice of appeal, he argued, is not sufficient to challenge such finding – citing Brittania-U (Nig.) Ltd v. Seplat Petroleum Dev. Ltd (2016) 4 NWLR (PT 1503) 451 @ 591 (SC). He described as lame appellant’s argument that he did not confirm which of its (Appellant’s) four Danjuma Aliyu/Alis is his second judgment debtor Mr. Danjuma. He argued that appellant should have showed that these Danjumas were different from his judgment debtor by attaching the pictures of its different Danjuma Aliyus together with their account opening documents; that in the absence of that, the lower Court was correct in holding that Appellant was in a better position to sort out its customers. By its conduct, he further submitted, Appellant tried to shield the judgment debtors and dared the Court to do its worst – in support of which he cited dictum in Central Bank of Nigeria v. Interstella Communications Ltd & 3 Ors (2015) 8 NWLR (PT 1462) 512-513. He finally urged us to resolve appellant’s sole issue against it and dismiss the appeal.

Resolution of issue
Now, the trial Court’s ruling on Respondent’s (9th Garnishee) Affidavit to Show Cause first went thus:
“Counsel to the Garnishee O.Y. Othman Esq. submitted that for the applicant’s counsel to say that the 9th Garnishee did not make a frank disclosure is mere conjecture as the applicant would have filed a counter affidavit. That the 9th Garnishee filed an affidavit to show cause of 6 paragraphs deposed to by Victoria E. Musa (Mrs.) a legal Practitioner in the Chambers of the counsel to the 9th Garnishee/Respondent bank. Six exhibits were attached to and marked AM1, AM2, AM3, AM4, AM5 and AM6 respectively. That the 1st judgment Debtors maintains two accounts with the 9th garnishees as (a) 0016594201 with a balance of ₦0.00 and (b) 0000973928 with a balance of ₦88.75 as exhibit AM1 and AM2 respectively , as deposed to in the affidavit of the respondent bank.”

And concentrating on 2nd respondent/judgment debtor Mr. Danjuma, it immediately went on to add thus:
“As to the 2nd judgment debtor, the garnishee bank deposed to the fact that there are four accounts with various numbers in the same name of Danjuma Aliyu but of different

addresses as in Exhibits AM3, AM4, AM5 and AM6 respectively. The balance of the accounts is ₦0.00. The 9th Garnishee is claiming that those accounts do belong to different customers and cannot know which of them is/are maintained by the 2nd Judgment Debtor in this case. This is not tenable because with the advent of the BVN policy, the bank is in a better position to sort out the different bank accounts. I do agree with the contention of the applicant’s counsel that the applicant need not file counter affidavit as the applicant does not have the information but the Respondent. All the Applicant requires is a full and frank disclosure which is at the disposal of the Garnishee. The 6 exhibits attached to the affidavit to show cause of the 9th Garnishee fall short of a statement which needs to have details of transactions carried out on the various accounts. The present disclosure is just a summary of what the Garnishee feels like disclosing. Therefore, the Court hereby makes orders absolute against the 9th Garnishee to satisfy applicant’s judgment sum accruable to him.”

Clear from this Ruling is that the lower Court did not have any

problem with the statement of account of Respondent’s first judgment debtor Hoffman & Danja Ltd, which account showed it as having only the sum of ₦88.75 in its second account. Its problem was rather with the four statements of accounts of appellant’s customers Danjuma Aliyu, Aliyu Danjuma and Ali Danjuma in Exhibits AM3, AM4, AM5 and AM6, all of which showed that their owners are:
(1) Aliyu Danjuma with account No 9797746933 of in the name of Aliyu Danjuma of House No B55, Ogane, Kogi State, Nigeria;
(2) Ali (not Aliyu) Danjuma whose address is Bauchi NYSC, Bauchi, Bauchi Nigeria, with Account No 9797537409 domiciled at No. 24 Muritala Muhammed Way, Bauchi, Bauchi State, Nigeria;
(3) Aliyu Danjuma of G43, Unguwar Gwari Chanchaga Minna Bosso, Niger State with account Number 6723010793 and
(4) Danjuma Aliyu of Sani Ahmad Potiskum Road, Dam, Bauchi State who holds Account Number 0716148605 with balance of 0.00.

The pertinent issue, therefore, is whether the burden of proof which burden included the burden to supply necessary materials that appellant was indebted to Respondent’s two judgment debtors was on

appellant as the lower Court reasoned or on Respondent. Clearly that burden was on the Respondent as the person alleging indebtedness of appellant to Mr. Danjuma of APC Plaza, Plot 2198, Off IBB Way, Wuse Zone 4, Abuja and so brought its application for garnishee proceeding pursuant to Section 83(1) of the Sheriffs and Civil Process Act. The settled position of the law still is that he who alleges, and not the one who asserts the negative, must prove. That is the prescription of Sections 131(1), 132 and 133 of the Evidence Act 2011. Section 83(1) of the Sheriffs and Civil Process Act pursuant to which Respondent commenced his garnishee proceeding states that:
83(1) The Court may upon the ex-parte 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 to what amount, and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person,

hereinafter 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 subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to 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 costs aforesaid. (Italics mine)
By this provision, particularly the italicized portion, Respondent had the burden of proving, first, that appellant’s four Danjuma Aliyu/Aliyu Danjuma/Ali Danjumas of Kogi, Bauchi and Niger States are the same person with his second judgment debtor Mr. Danjuma (a.k.a. Mr. Danjuma Aliyu) of APC Plaza, Plot 2198, Off IBB Way, Wuse Zone 4 Abuja. It is only when respondent discharges that duty by supplying the Court and appellant the necessary materials to identify the particular Danjuma or Danjuma Aliyu of his that the issue of whether the appellant shielded the true state of the said judgment debtor’s account would arise. The necessary materials for

that exercise would definitely include Mr. Danjuma’s BVN or at least his photograph, if Respondent had them, to enable appellant make the necessary connection between Respondent’s Mr Danjuma of APC Plaza, Abuja and appellant’s four Danjuma Aliyu customers of Kogi, Niger and Bauchi States. That duty became even more imperative here given appellant’s assertion in its affidavit that it could not even ascertain if any of its customers was appellant’s Mr. Danjuma. One cannot but also take judicial notice of the commonness of the names Danjuma and Aliyu in this part of the country. That much is also further evidenced by the difference in the addresses of appellant’s Danjumas which cut across three states of the North, coupled with the further fact that the same name is also borne by Respondent’s own Judgment debtor in Abuja. That is the more reason why a further affidavit of some sort by Respondent was expedient if he did not agree with the assertions of appellant in his affidavit.
Respondent’s contention that appellant should have produced photographs of its four Danjumas, besides what I have said here on

the burden of proof being on respondent and not on appellant, also seems preposterous. Respondent seems to forget that like his Mr. Danjuma, the said four customers of appellant are all entitled to some secrecy in their dealings with appellant Bank and appellant cannot without more be expected to disclose their photographs and other banking details simply because Respondent is claiming that a certain Mr. Danjuma, their possible namesake of Abuja, may also have account with their Bank. Respondent ought to have set the ball rolling even in that quest by first supplying appellant his own Danjuma’s photograph. It is only then the burden would have shifted to appellant to show the pictures of its own four Danjumas, if at all.
For the same reason that it was Respondent’s duty to furnish the Court and appellant the BVN Number of its Mr. Danjuma, the lower Court was also mistaken, in my humble opinion, when it turned the burden of proof upside down and reasoned that appellant’s should have sorted out the said accounts with BVN. Tracing of accounts through Bank Verification Number (BVN) even by a Bank cannot be done on a void as suggested by the

lower Court; it is common knowledge that it is only when a particular customer’s BVN Number is known that anyone interested in knowing his other accounts can trace them.

I hold that respondent, by the way it went about its application, failed to prove, on the weight of the evidence adduced before the lower Court, that appellant was indebted to its second judgment debtor Mr. Danjuma of APC Plaza, Abuja. At any rate, all four accounts – Exhibits AM3 to AM6 – of the different Danjuma customers of appellant, assuming, but not conceding that, they were the same with Respondent’s Danjuma, even showed that none of them had funds in their accounts. It is only monies deposited in his account by a Bank’s customer that constitutes debt owed such customer by the Bank (see Sani Abacha Foundation for Peace and Unity v. United Bank for Plc (2010) FWLR (PT 522), so if a customer has zero balance in its account his Bank is not indebted to him and cannot be made the subject of a garnishee order.

That contention, that Respondent did not prove its assertion on the weight of evidence, I further hold, is an issue for complaint within omnibus ground

in a civil appeal: seeAkpang v. Amiye (2015) 18 NWLR (PT 1490) 148 @ 160-161. At any rate, this Court is vested with sufficient powers by Section 15 of the Court of Appeal Act 2004 and Order 4 Rules 3 and 4 of the Court of Appeal Rules, 2016, to make necessary orders to enable it do justice between parties.

It is for each and all of these reasons that I agree with appellant that the lower Court, on the affidavits before it, was wrong in making its Garnishee Order absolute against it (appellant) on the basis of its purported indebtedness to Respondent’s second judgment debtor Mr. Danjuma.

In effect, the appeal succeeds partly and is allowed as regards the Garnishee Order Absolute of the lower Court concerning appellant’s alleged indebtedness to Respondent’s second judgment debtor Mr. Danjuma of APC Plaza, Plot 2198, Off IBB Way, Wuse Zone 4 Abuja. That part of the lower Court’s order is accordingly here set aside.
For avoidance of doubt, the lower Court’s Garnishee Order Absolute against appellant shall be and only remains effective as regards the sum of ₦88.75k in Account Number 0000973928 of Respondent’s

first mentioned judgment debtor Hoffman & Danja Ltd with appellant.
There shall be costs of this appeal which I assess at ₦50,000.00 in favour of appellant.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Boloukuromo Moses Ugo, JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

This appeal arose out of a garnishee proceeding and it is against a Garnishee Order Absolute made by the lower Court. Upon being served with a Garnishee Order Nisi in respect of a judgment sum of N1.8 Million against two judgment debtors, Hoffman and Danja Ltd and one Danjuma Aliyu, the Appellant filed an affidavit to show cause. In the affidavit, the Appellant disclosed that Hoffman and Danja Ltd had two accounts with it and one of which had a zero bank balance and the other N88.75 and that it had four customers with the name Danjuma Aliyu with different addresses, one in Kogi State, two in Bauchi State and one in Niger State and that all the four customers had

zero balances in their respective accounts and it exhibited the statements of the six accounts as exhibits. The Respondent did not file a counter affidavit to contend the facts deposed by the Appellant.

In obtaining the Garnishee Order nisi, the Respondent gave no specifics of the accounts and balances in the accounts operated by the judgment debtors with the Appellant. All he deposed in his affidavit was a generic averment that he knew the judgment debtors had various accounts with the Appellant. Notwithstanding these facts and circumstances, the lower Court proceeded to make a Garnishee Order Absolute against the Appellant for the full judgment sum on the ground that it did not make a full and frank disclosure. The lower Court stated that the six exhibits attached to the affidavit to show cause fell short of a statement of account which needs to have details of transactions carried out on the various accounts and that they were just summaries of the accounts and did not thus constitute full disclosures.
This case again brings to the fore the massive misunderstanding that trial Courts have about the extent of their powers in a garnishee proceeding.

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). Thus, the resolution of this appeal must necessarily turn on whether the step taken by lower Court in making the Garnishee Order Absolute in the light of the circumstances of this case was in accord with the provisions of the Sheriffs and Civil Process Act.
Now, where a garnishee appears in Court in obedience to the garnishee order nisi and files an affidavit to show cause disputing liability, as in the instant case, 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.
The first question that arises for resolution is when is there said to be a dispute of liability by a garnishee and which requires further enquiry under Section 87 of the Sheriffs and Civil Process Act? Is it once a garnishee appears to a garnishee order nisi and files an affidavit simplicifer to show cause? Or is it where a garnishee files an affidavit to show cause dovetailing on specifics and the facts deposed therein are countered

or contested by the judgment creditor in a further affidavit? Or is it where a garnishee files an affidavit to show cause dovetailing of specifics, whether or not the judgment debtor counters those facts in a further affidavit? The position of case law seems to put forward three different scenarios. Firstly, 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 does not condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, there is no dispute of liability warranting further enquiry under Section 87 of the Sheriffs and Civil Process Act, and the Court can go ahead and make an order of garnishee absolute — 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). In other words, the garnishee must make out a prima facie case in favour of an order for an issue to be tried —Central Bank of Nigeria Vs Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA).
Secondly, 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, there is a dispute of liability warranting the use of Section 87 of the Sheriffs and Civil Process Act – 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).
The third scenario is 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, a dispute as to liability warranting the use of Section 87 of the Sheriffs and Civil Process Act will only arise where the judgment creditor deposes to a further affidavit contesting the assertions of the garnishee, otherwise the garnishee would be discharged on the basis of its deposition -Zenith Bank Plc Vs Kano (2016) LPELR 40335(CA), Eco Bank Nigeria Limited Vs Udofia (2018) LPELR 45164(CA), All Works Commercial Company Ltd Vs Central Bank of Nigeria (2018) LPELR 45991(CA). This is in furtherance of the principle that where specific facts in a response affidavit are not covered by the depositions in the original affidavit, the party must file a further affidavit to counter those specific facts, otherwise they will be deemed admitted – Badejo Vs Federal Ministry of Education (1996) 8 NWLR (Pt 464) 15, Dana Airlines Ltd Vs Yusuf (2017) LPELR 43051(CA), Yandy Vs Alhaji Umar Na Alhaji Lawan & Sons Ltd (2018) LPELR 45634(CA), Akiti Vs Oyekunle (2018) LPELR 43721 (SC).
The facts of this case fall clearly within the third scenario and the proper order for the lower

Court to have made was one discharging the Appellant or, at worst, one limiting the Garnishee Order Absolute to the sum of N88.75 in the account of Hoffman and Danja Ltd. Going forward and assuming that lower Court indeed had a basis for believing that the Appellant did not make a full and frank disclosure of the state of the accounts of the judgment debtors, it meant that there was a need for it to make an enquiry under Section 87 of the Sheriffs and Civil Process Act. The discretion given to the lower Court in making such enquiry does not include the power to make a Garnishee Order Absolute.
In interpreting the provisions of Section 87 of the Sheriffs and Civil Process Act, the Courts are of the opinion that the discretion given to a Court, where there are clear and unchallenged facts from a garnishee disputing liability, is not open-ended, allowing it to make any order it desires. The Courts hold the discretion is limited to either the Court calling for trial of the case or referring the matter to a referee, and nothing more – Star Deepwater Petroleum Limited Vs A.I.C. Limited (2015) LPELR 25387(CA), Total Upstream Nigeria Ltd Vs A.I.C. Limited (2015)

LPELR 25388(CA). In Mainstreet Bank Ltd Vs United Bank for Africa Plc (2014) LPELR 24118(CA), the Court made the point thus:
“Section 87 of the Sheriffs and Civil Process Act, Cap 407, Laws of the Federation of Nigeria 2004 has this to say: … Although the provisions just reproduced say “MAY” thereby giving the Court a discretion in the matter, such discretion must decidedly be exercised, not only judicially, but judiciously. Discretion that is exercised erratically is a pervasion of justice in all its ramifications. In the present case, the Appellant has disputed liability. He filed an affidavit and a further and better affidavit to which he annexed a certified true copy of statement of account which is dormant. There was no counter affidavit to counter the depositions in those affidavits. … The provisions of Section 87 of the Sheriffs and Civil Process Act, which stipulates what procedure to be adopted by the trial Court, where liability for the judgment debt is DISPUTED by the Garnishee, indeed limits the exercise of the Court’s discretion to either, to call for trial of the case, or to refer the matter to a referee. No

other procedure is implied in the provisions of that statute … It was the duty of the Court, in Garnishee Proceedings, to call on parties to show cause as required by law, but it was also his duty to have regard to the provisions of Section 87 … in operating that duty.”
The proper step to be taken by a Court where it decides to make an enquiry under Section 87 of the Sheriffs and Civil Process Act is provided for in Order 8 Rule 8(2) of the Judgment Enforcement Procedure Rules and it is that where an order is made under Section 87 of the Act for the trial or determination of any issue or question, 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). In Central Bank of Nigeria Vs Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, the Court explained the position thus:
“Garnishee proceeding is a unique procedure which provides a clear and fair procedure to be followed in resolution of

disputed liability. Section 87 of the Sheriffs and Civil Process Act provides … Instead of trying to resolve the disputed liability based on conflicting affidavit evidence made by the parties herein and placing reliance on materials not put before the Court in garnishee proceedings, the trial Court should have adopted the procedure provided in Section 87 above to determine the liability of the Appellant. To this end, he should have either allowed the parties call oral evidence to resolve the disputed areas or allowed them to cross-examine the deponents of the respective affidavits of the parties confronting them with whatever documentary evidence that are available which will reveal the true state of facts and enable make up his mind on the liability or otherwise of the Appellant.”
Thus, if the lower Court was convinced that the Appellant did not make a full and frank disclosure of the accounts of the judgment debtors, the only option opened to it was to have set the point down for hearing and called on the parties to call oral evidence thereon, It had no power to make a Garnishee Order Absolute in such circumstances – see the unreported decision

of this Court in Appeal No CA/L/412/2016 — Standard Chartered Bank Nig. Ltd Vs Liquid Africa Holdings Ltd delivered on the 11th of July, 2018. It is for these reasons and the fuller exposition of the law in the lead judgment that I too find merit in this appeal and I hereby allow same. I set aside the decision of the High Court of Plateau State granting a Garnishee Order Absolute against the Appellant for the entire judgment sum and made on the 30th of May, 2018. I agree that the Garnishee Order Absolute shall only be effective against the balance sum of N88.75 in the account of Hoffman and Danja with the Appellant. I abide the order on costs in the lead judgment.

MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading in draft the leading judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA.

I agree with the reasoning and conclusion that the appeal succeed in part and ought to be allowed in part as it regards the Garnishee Order absolute concerning Appellant’s alleged indebtedness to the Respondent’s second judgment debtor Mr. Danjuma of APC Plaza, Plot 2198, off IBB Way Wuse Zone 4 Abuja.

I also set aside the order and abide by the consequential orders therein contained in the leading judgment.

Appearances:

O.Y. Othman Esq. For Appellant(s)

B.O. Anajeke Esq. For Respondent(s)