ECOBANK NIG. PLC v. CHIEF (ELDER) ITA ONOYOM ETTE & ORS
(2014)LCN/7380(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of July, 2014
CA/C/93/2012
RATIO
COURT: DUTY OF COURTS; THE DUTY OF THE COURT NOT TO IGNORE ISSUES IN AFFIDAVIT
It is the position of the law that issues in affidavit shall not be ignored as this will be arbitrary justice for a Judge to do so See MOKWE VS. EZEUKO (2001) FWLR (PT. 38) P. 1290 PARA C-D. per. JOSEPH JUDE JELLA, J.C.A.
PRACTICE AND PROCEDURE: GARNISHEE ORDER; THE IMPLICATION OF A GARNISHEE ORDER MADE ABSOLUTE
It is trite that whenever a Garnishee Order is made absolute, the Garnishee may appear to show cause why he should not pay to the person who has obtained the judgment. See UBA PLC VS. EKANEM (2010) 6 NWLR (Pt. 1190) 207. per. JOSEPH JUDE JELLA, J.C.A.
Before Their Lordships
ONYEKACHI AJA OTISIJustice of The Court of Appeal of Nigeria
PAUL OBI ELECHIJustice of The Court of Appeal of Nigeria
JOSEPH JUDE JELLAJustice of The Court of Appeal of Nigeria
Between
ECOBANK NIG. PLCAppellant(s)
AND
1. CHIEF (ELDER) ITA ONOYOM ETTE
2. THE INSPECTOR GENERAL OF POLICE FORCE
(HEADQUARTERS, ABUJA)
3. ASSISTANT INSPECTOR GENERAL OF POLICE
(ZONE 6, CALABAR)
4. THE COMMISSIONER OF POLICE
(CROSS RIVER STATE COMMAND CALABAR)
5. THE COMMISSIONER OF POLICE
(ANTI-FRAUD SECTION D DEPARTMENT FORCE CID (ANNEX) ALAGBON CLOSE IKOYI LAGOS
6. THE ASSISTANT COMMISSIONER OF POLICE
(LEGAL/PROSECUTION SECTION DEPARTMENT FORCE CID (ANNEX), LAGOS)
7. NIGERIA DEPOSIT INSURANCE CORPORATION, LAGOS
8. ALHAJI SALAMI (OC FRAUD AND INTELLIGENCE UNIT, ZONE 6, CALABAR)Respondent(s)
JOSEPH JUDE JELLA, J.C.A. (Delivering the Lead Ruling): This is an appeal against the garnishee order absolute of Hon. Justice A. F. A. Ademola of the Federal High Court sitting in Calabar dated 20th March, 2012 in suit No. FHC/CA/M121/2011 in a garnishee proceedings where of the lower Court garnished the sum of N50, million in favour of the garnishor herein the 1st Respondent. Aggrieved the Appellant appealed on a Notice of Appeal filed on 21st May, 2012.
Briefly the facts given rise to this case is that, the 1st Respondent sued the 2nd to 8th Respondent at the lower Court in a Fundamental Right action and the sum of N50 million was awarded as damages against the 2nd to 8th Respondent.
Dissatisfied with this award the Appellant brought this appeal containing 3 grounds of appeal filed on the 31st March, 2013 ie the Amended Notice of Appeal and in the Appellant Amended Brief filed on the 21st June, 2013. On the date the appeal was heard, one issue was distilled for determination as follows:
Whether the learned trial Judge was right in making the Garnishee Order absolute when the appellant had no money standing to the credit of the judgment debtor with (distilled from ground 2 of the Notion of Appeal)
We are by this urged upon to set aside the order absolute made by the court below on 20th March, 2013.
Appellant argued his reaction to the counter-affidavit filed on the 12th August, 2012 by the 1st Respondent in his Further and Better Affidavit, that the deposition by the 1st Respondent is not true because the account number cited by the 1st Respondent does not belong to the 2nd to 8th Respondents ie the judgment debtors but that the said account number belongs to the Police Pensions Board who are not parties to this case.
Paragraph 6 of the affidavit deposed to by one Victoria Okon and filed on 12th March, 2012 carries this account No. 1830100234946301 which belongs to the Appellant with which the 1st, 2nd, 3rd, 4th, 5th, and 7th judgment Debtors/Respondents operate account with the 3rd Garnishee.
Paragraph 6 of the Further and Better Affidavit filed by the 3rd and 12th Garnishee deposed by one Innocent Nwanosike Banker and relationship Manger to the 3rd and 12th Garnishee. It is deposed in it by the counsel to the 3rd and 12th Garnishee that the account holder are not parties to this action and that none of the parties to this action equally has any relationship with the said account and they are not signatories to it either, and that the account holder are juristic persons.
It is the position of the law that issues in affidavit shall not be ignored as this will be arbitrary justice for a Judge to do so See MOKWE VS. EZEUKO (2001) FWLR (PT. 38) P. 1290 PARA C-D. Affidavit was also deposed to by one Bassey Etim wherein he confirmed that Garnishee Order Nisi was served on the Union Bank Nigeria Plc and that Barrister M. M. Imam Legal Officer, Union Bank Nigeria Plc informed him that none of the Respondents have accounts with the Union Bank of Nigeria Plc. The 6th Garnishee of this proceedings.
The 10th Garnishee also filed an affidavit to show cause; the facts deposed to by one Joe Nandi Esom was that the Bank was served with the Garnishee Order Nisi upon which the court conducted research of its records and confirm that the judgment Debtor/Respondent do not have any account with the Bank and do not have any money standing to their credit.
It is trite that whenever a Garnishee Order is made absolute, the Garnishee may appear to show cause why he should not pay to the person who has obtained the judgment. See UBA PLC VS. EKANEM (2010) 6 NWLR (Pt. 1190) 207.
It seems to me clear on record that Garnishee, upon Order Nisi made on the 30th January, 2012 to show cause why Nisi Order should not be made absolute that which Garnishee actually did. On the return date it was announced that garnishee have filed affidavit to show cause, wherein the appellant deposed to the facts that judgment debtors have no account with nor any relationship; rather the said customer account number belongs to Police Pension Board, the fact trial court paid no attention to.
The facts as contained in the further affidavit of the appellant are vital and could have assisted the court in arriving at a just decision. Section 88 of the Sheriff and Civil Process Act Cap 407 Laws of the Federation provides:
Whenever in any proceedings to obtain an attachment of a debt. It is suggested by the Garnishee that the debt sought to be attached belongs to some third person or any third party has a lien or charge upon it, court may order such third person to appear in court and state the nature and particulars of his claims upon such debt”.
Unfortunately, lower Court did not order the third person here suggested by the appellant being the owner of the said account number, the Police Pension Board; this would have helped the lower Court in arriving at a just conclusion. Section 89 of the same Act further provides that, if the third person as described in the last proceeding section does not appear, the court on proof of service of a copy of the order, may proceed to make an order as if such person had appeared.
By implication this section is to the effect that once the person fails to appear it would create the presumption that the third person suggested by the appellant is the owner of the account. The court can thereafter go ahead to make the order absolute. However, this requirement was not met by the lower Court in this case.
This could be pretty embarrassing and contrary to the provision of section 83(1) of the above law which provides that the Garnishee must have in its procession funds belonging to the judgment debtor. This is the more reason why the court must be careful in dealing with the case of this nature.
Respondent having deposed to an affidavit to the effect that judgment Debtor/Respondent operate an account with the 3rd Garnishee with the following account No. 183010023496301 that which the 3rd Garnishee denied but confirmed that the account number belongs to Police Pension board. The fact which was also deposed to by the appellant in showing cause why Order Nisi should not be made absolute. Had the 3rd Garnishee ie the appellant failed to comply with this requirement of showing cause. The court would have no other option than to make the order absolute.
In UBA PLC VS. EKANEM (SUPRA) the court said that the judgment debtor is merely a nominal party whose money in the custody of the garnishee being recovered by the judgment debtor in satisfaction of judgment debt he owes the judgment creditor. Judgment debtor is not the one requested to appear before the court to show cause why the order nisi should not be made absolute. It is only the Garnishee that is expected to inform the court if there is any third party’s interest in the said judgment debtor’s money in its custody and it is he that can react if the law is not complied with.
An order of any kind cannot be made against a person that is not before the court. See AWONIYI VS. AMORE (2000) 6 SC p.117 PARA 15-20. In this case Police Pension Board was not a party before the trial court and so the court cannot make an order against it or its account.
It is therefore absurd for a court to have made an Order Nisi absolute on the 30th January, 2012 without calling the third person to appear and give his particulars as to that account suggested to belong to him was in error and a fundamental failure to comply with the law.
In the final result I answer the issue raised in favour of the appellant. There is therefore merit in the appellant case. The decision of the trial court is hereby set aside.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Joseph Jude Jella, JCA made available to me a draft copy of the Ruling just delivered. I am in agreement with his reasoning and conclusion.
I abide by the order made.
PAUL OBI ELECHI, J.C.A.: I have had a preview of the illuminating judgment just delivered by my learned brother Joseph Jude Jella, JCA. I agree completely with him that this appeal should succeed and be allowed. I also abide by the consequential orders made.
Appearances
Samson Onah Esq.For Appellant
AND
For Respondent
