IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI
BEFORE HIS LORDSHIP: JUSTICE I.S. GALADIMA
Dated: 24th January, 2019
Suit No. NICN/OW/14M/2018
Between:
DECLAN MBADIWE EMELUMBA
CHIEF MIKE IHEANATU
EMERONYE BENJAMIN
JUDGMENT CREDITORS
AND
IMO STATE GOVERNMENT
GOVERNOR OF IMO STATE
ATTORNEY GENERAL OF IMO STATE
ACCOUNTANT GENERAL OF IMO STATE
IMO STATE HOUSE OF ASSEMBLY SERVICE
COMMISSION
JUDGMENT DEBTORS
AND
ECO BANK PLC
FIRST CITY MONUMENT BANK PLC
FIDELITY BANK PLC
FIRST BANK PLC
GUARANTY TRUST BANK PLC
POLARIS BANK LTD
UNITED BANK FOR AFRICA PLC
UNION BANK PLC
UNITY BANK PLC
GARNISHEES
REPRESENTATION:
- K. I UDUMA FOR JUDGMENT CREDITORS
- J.M.E ONYENAKAZI WITH S.N. ETUK, S.I. OKWARAJUGO FOR 3rd GARNISHEE BANK
RULING:
These post judgment proceedings were commenced by way of a Garnishee application against the 1st to 9th Garnishee Banks on the 6th of November, 2018 wherein the judgment creditors sought to enforce the payment of the judgment sum of N16,843,781.25 obtained in the Judgment of 27th September, 2017 per Anuwe, J. This Court made an Order Nisi against the Garnishees on the 8th of November, 2018 and subsequently adjourned the proceedings to the 3rd of December, 2018 in order for the Garnishees to show cause why the order Nisi should not be made Absolute against the Garnishee Banks. On the 3rd December, 2018, this Court after receiving affidavits to show cause from some of the Garnishees specifically the 1st, 2nd, 3rd, 4th, 5th, 7th and 8th Garnishee Banks, entered an Order Absolute against the 4th Garnishee, First Bank of Nigeria PLC for the sum of N9,303,651.16k which it deposed it held on behalf of the judgment Debtor in its account as partial payment of the entire sum owed. This Court upon the application of the Judgment Creditors, then discharged the 1st, 2nd, 5th, and 7th Garnishee Banks and went on to grant the 3rd, 6th and 9th Garnishees another date to be heard on why the order Nisi shall not be made Absolute against them. The 4th Garnishee was discharged after the payment of the partial judgment debt to the judgment creditors.
Before the 23rd of January, 2019, the Judgment Creditors had filed a Counter Affidavit and written address against the 3rd Garnishee’s affidavit to show cause. The 9th Garnishee was discharged on that same date on the application of the Judgement Creditors. The 6th Garnishee, who had filed an affidavit of cause, was given another date to be heard.
Consequently, this ruling is in respect of the 3rd Garnishee’s affidavit of cause challenging this Court from making an Order Absolute against it in respect of the sums in the 1st Judgment Debtors’ account number 5030061329 containing the sum of N9,615,473.06 as at November 15, 2018 when the Garnishee was purportedly served with the order Nisi.
The main reason why the 3rd Garnishee challenged the pronouncement of an order Absolute against it is purportedly because of the deposition it made in its affidavit of 3rd December, 2018 in paragraph 9 thus:
“…the 1st Judgment Debtor as at the time the Order Nisi was served on the bank…is indebted to the 3rd Garnishee Bank to the tune of N6,322,108,549.15 DR…”
Accordingly therefore,
“…the 3rd Garnishee has a right of set off over the sum in credit against the indebtedness of the 1st Judgment Debtor owed to her.”
(Paragraph 12 of the Affidavit of Cause).
J.M.E. Onyenakazi as lead Counsel for the 3rd Garnishee, was permitted to orally argue his client’s claim. Relying on the 14 paragraph affidavit of 3/12/2018, he submitted that because the 1st Judgment Debtor secured a loan of over N6 billion, the 3rd Garnishee had placed a lien on the 1st Judgment Debtor’s money in the account in its possession. Accordingly, by Section 88 of the SCPA, the 3rd Garnishee has such right of lien in respect of money in the credit of the judgment debtor. That the Garnishee had supplied and stated clearly in the Affidavit of Cause how the 1st Judgment Debtor became indebted to her and why a lien is now made against any other person including the Judgment Creditors. He said further that whenever the Court is in doubt, Section 89 of the SCPA enjoins the Court to call the third party making such claims.
Counsel went on to state specifically that where a Garnishee Bank makes a claim it is owed money by its customer, the Court is minded to allow a stay against making an Order Absolute in a Garnishee proceedings. Accordingly again, there is a right of set off where a Garnishee is owed money. That this can be gleaned from the decision in OAU V. OLANIHUN (1996) 8NWLR (part 464) 123. Furthermore, Counsel submitted that it is not like the Garnishee is attempting to protect the judgment debtor. That all the Garnishee is saying is that it has a right to withhold the money as its own. The case of FIDELITY BANK V. FRANCIS OKWUOWULU (2002) LPELR 84, 97 was cited. That in order to establish such an interest over a property or money allegedly the subject of a set off by a Garnishee, all the Garnishee is required to do is to file an Affidavit of Cause. As such, Counsel urged this Court to hold that this Garnishee has a right of set off against the 1st Judgment Debtor.
In reaction, the Judgment Creditors’ Counsel, K. I. Uduma submitted that they filed a Counter Affidavit on the 17/1/2019 duly deposed to by the 3rd Judgement Creditor. They also filed a written address which Counsel adopted as his arguments on the 23rd of January, 2019.
According to him, a sole issue is for determination which is whether the 3rd Garnishee has shown substantial cause to warrant a discharge from these Garnishee proceedings. That the 3rd Garnishee has not filed a separate suit against the 1st Judgment Debtor to make any claim of money owed her. He referred to paragraphs 5 and 6 of the Counter Affidavit to argue also that there is no valid or subsisting order of Court precluding this Court from exercising it power to grant this order Absolute. He submitted that the order or judgment of a Court remains valid and subsisting until set aside in appeal. As such, the 3rd Garnishee has failed to adduce cogent reasons why a discharge must be granted her.
Furthermore, Counsel argued that a Garnishee is under duty to obey the order of a Court once the account showing the funds of the Judgment Debtor is in its possession. It is accordingly not open to the Garnishee to devise a means or a way to save or help the Judgment Debtor. He went on to say that Exhibit B attached to the 3rd Garnishee’s Affidavit of Cause is a mere “Offer Letter” to the 1st Judgment Debtor and there was no proof to establish that the sum of over N6 billion was ever given to the 1st Judgment Debtor. Also, that in paragraph 11 of their Affidavit of Cause, the 3rd Garnishee had mentioned a case wherein the same account was attached by this same Court in discharge of a Judgment debt. The said suit was accordingly concluded since early 2018 and as such the 3rd Garnishee was not accurate about the information provided in that paragraph. That by Section 167 (d) of the Evidence Act, the refusal of this Garnishee to provide relevant information deliberately must be construed as an attempt to withhold information which it knows will be inimical to it. As such, since the Garnishee has in its paragraph 8 deposed to being in possession of sufficient money capable of offsetting the judgment debt in this suit, this Court must proceed to make this order Nisi, an order Absolute pursuant to the provisions of the law and grant the payment of the over N7 million being the balance owed the Judgment Creditors.
In response on points of law, the 3rd Garnishee Counsel said any mention or reference to Section 167 (d) of the Evidence Act here is immaterial as the Garnishee has not hidden any facts whatsoever. That all mentions or references by the Judgment Creditors’ Counsel to Exhibit B of their Affidavit of Cause should be disregarded since facts were never led in that direction in their Counter Affidavit. He again urged the Court to discharge his client in the interest of justice.
DECISION:
I have elaborately perused and considered the Affidavit of Cause and exhibits attached thereto as well as the Judgment Creditors’ Counter Affidavit accompanied by written address. It is trite, that the term garnishment denotes a judicial proceeding wherein a judgement creditor prays the court to order a third party to turn over to the creditor any of the debtor’s property (e.g. wages or bank accounts) held by the third party (usually a Bank). A garnishment proceeding is usually resorted to as a means of either prejudgment seizure or post judgment collection. It is also a process by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hand of his debtor – See CITIZEN INTERNATIONAL BANK VS. SCOA (NIG) LTD (2006) 18 NWLR (PT.1011) 334.
In these proceedings, the 3rd Garnishee put up this challenge against the order Nisi made against it on the grounds that the 1st Judgment Debtor is indebted to it. This Court pursuant to Order 51 Rule 5 of the 2017 NICN Rules, has accordingly given the 3rd Garnishee an opportunity to dispute the liability to pay the debt due against the 1st Judgment Debtor. Primarily, I find it is absolutely correct that once, a customer is indebted to his Banker, the Banker’s right to dishonor and refuse to obey any order to withdraw on the account is obvious. In that state of affairs, therefore, the customer cannot be said to still be seized of the right to withdraw from the account as contended – See FIDELITY BANK V. FRANCIS OKWUOWULU (2002) LPELR 8497. This, ordinarily, will in fact be a Defence against the Court granting an order Absolute.
In the instant case however, the 3rd Garnishee has admitted that it has custody of account number 5030061329 which as at the 15th of November, 2018 when this order Nisi was served on it, contained the sum of N9,615,473.06. Exhibit “A” attached to their affidavit clearly shows this. Exhibit “B” on the other hand, is a letter dated August 25 2015 titled “OFFER OF N6,591,480.000.00..,TERM LOAN TO IMO…”. According to the Garnishee’s deposition, this loan was availed to enable the 1st Judgment Debtor liquidate the salary arrears of workers in the State. Also, the Garnishee believes that it has a right of set-off over the sum in credit against the indebtedness of the 1st Judgment Debtor owed to her. It is further alleged that there are other Garnishee orders against the 1st Judgment Debtor with respect to the same account number. Interestingly, no details of this last deposed fact was either exhibited or shown to exist and or the amount provided. The fact that such a statement was made does not automatically make it truthful without further evidence.
Another interesting portion of the Garnishee’s Affidavit of Cause is the deposition made in paragraph 11 wherein it is alleged that as the time the Order Nisi was served on the 3rd Garnishee Bank, the total debt owed the Garnishee by the 1st Judgement Debtor is over N12 billion. It was further deposed that this very account is the subject of other litigations “as the other credits in the account had been attached in order (sic) Garnishees of PAUL OGUJIOFOR AND 46 ORS V. GOV. OF IMO…”. What seems interesting about this deposition is that the order Absolute made by my learned brother, Anuwe, J in the cited case above was done in 2017 by ruling delivered on the 9th of January, 2017 and it was in respect of a separate Fidelity Bank account number 5030062113 which had contained the sum of N101,281,887.40. The fact upon my inquest is that that case had already been concluded long before now (in 2017) and the judgment debt paid after the Court granted an order Absolute against Fidelity Bank. It also became obvious from my findings as well that the facts deposed to in this paragraph 11 of the 3rd Garnishee’s Affidavit of Cause are deliberately misleading. This is so because the account number attached in that case is a separate account from the one attached here and as rightly pointed out by the Counsel to the Judgement Creditor, the Counsel to this 3rd Garnishee had made a similar application before my learned brother which was rejected by the Court.
A cursory look at the Exhibit B attached to this Garnishee’s Affidavit of Cause indicates that it is an “Offer Letter” to the 1st Judgment Debtor. I suppose from the nomenclature alone this suggests that it was merely an inchoate step towards a deal or a transaction . Unfortunately, what was produced as an Exhibit to suggest the existence of this over 6 billion naira loan purportedly made to the 1st Judgment Debtor by the Garnishee, is insufficient to convince me to act otherwise. However, assuming such amount were granted as a loan to the 1st Judgment Debtor, I sincerely doubt if the repayments for such loan were for a definitively short period giving the enormity of the amount alleged. Thus being the case, I find it improbable that the Bank intends to prevent the State Government from paying all her liabilities or debts legally incurred against it until the final discharge of the alleged over N6 billion by the 1st Judgment Debtor. Or put in another way, I do not see how the existence of a loan to the 1st Judgment Debtor by the Garnishee Bank serves as automatic deterrence to a Court from ordering the enforcement of its valid and subsisting judgment. This is so because the account was never shown to be subject of the collateral for the loan facility. Besides, the account attached by this Order Nisi was not in debit on the date it was so granted. Giving also that the repayments of the over N6 billion still subsists against the 1st Judgment Debtor (and that interests on same have accordingly even more than doubled to date – although there is no way of determining this fact since no exhibit showing any statement of indebtedness was attached contrary to what the 3rd Garnishee deposed to in paragraph 10), I fail to see why the valid and subsisting Judgment of this Court for the sum of a comparatively paltry over 7 million Naira should continue to remain unenforceable against the 1st Judgment Debtor’s money in the custody of this Garnishee. I do not find how further hardships will occur if I made an Order Absolute against the 3rd Garnishee who seems desperate to save the 1st Judgment Debtor from paying the judgment debt. The cases cited by Counsel to the 3rd Garnishee that is OAU V. OLANIHUN (Supra) and FIDELITY BANK V. OKWUOWULU (Supra) are distinguishable from the facts of this case in that whereas the owners of the accounts the subject of the Garnishee orders in those cases were private individual persons, the 1st Judgement Debtor here is a Government entity which exists in perpetuity. Secondly, the loan allegedly made here to the 1st Judgment Debtor does not automatically become a legitimate lien on the State Government’s bank accounts particularly those in custody of this Garnishee without a Court Order or other instrument in that regard. This Garnishee cannot therefore act against a Court order by refusing to obey it simply because it feels the customer owes it without another valid court order supporting it to so do.
Therefore, in the absence of any appellate proceedings or any order preventing this Court from acting appropriately; And whereas there are no existing applications by way of a suit or originating process by the 3rd Garnishee applying to place a lien or set off against the 1st Judgment Debtor’s account number 5030061329 before this Court or any other Court for that matter, I find that there is just and sufficient cause to refuse this 3rd Garnishee’s plea against making an order Absolute.
Accordingly, I hereby pronounce the Order Nisi, Absolute with regards to the sum of money held by the 3rd Garnishee for the 1st Judgment Debtor in these proceedings. That is to say, the balance of N7,540,130.09 shall be deducted from the sum of N9,615,473.06 and paid to the Judgment Creditors forthwith. I also lift any lien or set-off created against the said account number 5030061329 in possession of the 3rd Garnishee Bank.
Ruling delivered in Owerri this 24th Day of January, 2019.
Hon Justice I.S. Galadima
Presiding Judge.
