NICON INSURANCE PLC v. JACKSON J. NASARA & ORS
(2019)LCN/13278(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/J/149/2009
RATIO
A JUDGMENT CANNOT BE CHALLENGED BY WAY OF PRELIMINARY OBJECTION
The attempt to challenge the finding of the learned trial Judge by raising the issue by way of a preliminary objection is not known to the law. In the case of Kubor V Dickson (2013) 4 NWLR (Pt. 1345) 534, 564 (B -D), the respondent raised a preliminary objection to some of the grounds of appeal in the Supreme Court.PER JOSEPH EYO EKANEM, J.C.A.
GARNISHEE PROCEEDINGS: SECTION 83(1) OF THE SHERIFFS AND CIVIL PROCESS ACT
Section 83 (1) of the Sheriffs and Civil Process Act provides:
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 costs of the garnishee proceedings and by the same or any 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.PER JOSEPH EYO EKANEM, J.C.A.
GARNISHEE: FOR A GARNISHEE PROCEEDING TO BE VALID WHAT MUST EXIST
In the case of Central Bank of Nigeria v Auto Import Export, supra. this Court held that for garnishee proceedings to be valid –
(i)The garnishee must be indebted to the judgment debtor within the state and be resident in the state in which the proceedings are to be brought.
(ii) The proceedings should be filed in any Court in which the judgment debtor could under the High Court (Civil Procedure) Rules or under the appropriate section or Rules governing Civil Procedure in Magistrate?s Courts, as the case may be, sue the garnishee in respect of the debt.
(iii) The application shall be made ex-parte. The Court if satisfied that the judgment creditor is entitled to attach the debt shall make a garnishee order nisi.
(iv) The service of the order nisi on the garnishee binds and attaches the debt in the hands of the garnishee.PER JOSEPH EYO EKANEM, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
NICON INSURANCE PLC Appellant(s)
AND
1. JACKSON J. NASARA
2. OJO J. OLAOLUWA
3. PRISCILLA C. OFONDU
4. ODAN O. NICODEMUS
5. PANAM J. FWA
6. MARTINS E. SHAKARHO
7. ACHO PETER
8. SALISU MUSA I.
9. GABRIEL I. YARO
10. MATTHEW OKOLI
11. MESSIAH ORJIME
12. HANNAH S. ADAMA
13. SABO AHIABA
14. PATRICK I. MAOR
15. JOHN TYOSAR
16. WILLIAM SUNDAY
17. PATRICK INAKU
18. SUNDAY ADA
19. ALIYU MAINA
20. HABILA ADAMU
21. JOHN E. ETIM
22. JOHN I. TALI
23. TERFA P. BALAUN
24. IBRAHIM ZAKARIYA
25. SOUGH P. HWEMBE
26. JONAH AKIKUS
27. FELIX T. TYOAKOSU
28. DANKARO TERKURA
29. FRIDAY JIM AYUBA
30. PAUL UKWU
31. ABDULLAHI USMAN M.
32. IKA SHIDDI LAMBA
33. FRIDAY OLOTU
34. EMMANUEL M. SULE
35. MOSES S. EJEH
36. KAKALE UMAR
37. CHRISTY MAMMAN
38. CLEMENT IFE OBA
39. DENEN IORNONGU
40. EKAETE E. ATAKPO
41. SARATU ZAKKA
42. DANIEL O. ADOGA
43. MESHACH OWUTUAMO
44. WILLIAM YAWEH
45. HAPPINESS AGBENYI
46. JOSEPH E. AMEH
47. LARE OSUMAN
48. PAUL ENENCHE
49. GRACE ANEBI
50. AHMED MAI SAMAILA
51. SHEDRACH A. OCHOLI
52. IYAJI AYEFU
53. BEM T. YAOR
54. ISRAEL UMAR OMALE
55. INYANG U. UDUMA
56. CHRISTY A. UGWU
57. JOSEPH GANGA
58. MICHAEL T. BINGA
59. MEMUNATU MUDI
60. IKECHUKWU O. PETER
61. ADAMU I. YOHANNA
62. HENRY T. HWANDE
63. YUSUF SUNDAY
64. HAYATU IBRAHIM
65. MARTHINA OBIKA
66. SANDRA OSUMAN
67. THERESA IORKOHOL
68. MATTHEW EMBERGA
69. SUNDAY OGBU
70. SARAH TSANGE E.
71. FINCHI JAMES
72. SHAGAYA Y. YUNANA
73. KENNETH T. UKULE
74. SIMON IORTIM A.
75. IDRIS ABDULLAHI
76. CHRISTOPHER ABAH
77. ESA EJEH
78. ROMANUS MBADIWE
79. PETER M. AKANDE
AND
1. ZENITH BANK PLC
2. GUARANTY TRUST BANK PLC
– GARNISHEES Respondent(s)
JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the rulings of the High Court of Benue State in Motion No. MHC/1149M/2008 and Motion No. MHC/1050M/2008 delivered on 19/2/2009. In the ruling, the lower Court, in respect of motion No. MHC/1149M/2008, dismissed the application of the appellant (as judgment debtor) to set aside the garnishee order nisi made by the Court on 7/11/2008 against the garnishees/80th and 81st respondents. The lower Court thereafter proceeded to deliver its ruling in Motion No. MHC/1050M/2008 granting a garnishee order absolute against the 2nd garnishee/81st respondent in respect of the judgment debt owed by the appellant to the 1st – 79th respondents.
The facts of the case leading to this appeal may be summarised as follows: The 1st -79th respondents sued the appellant and three others in suit No. MHC/42/2007 at the lower Court. Judgment was entered in favour of the said respondents against the appellant and the other defendants in the suit. They were ordered to pay the salaries and allowances of the respondents, calculated in accordance with their terms of
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employment.
For the purpose of the enforcement of the judgment of the Court, the 1st -79th respondents filed a motion ex parte at the lower Court for an order nisi attaching the total sum of N37,650,887.52 standing to the credit of the judgment debtors in the garnishees/respondents and another bank. The trial Court heard the motion, which it found to be meritorious and issued an order nisi as prayed. Upon being served with the order nisi, the appellant (as judgment debtor) applied by way of a motion on notice numbered as MHC/1149M/2008 for an order setting aside the order nisi for want of jurisdiction.
At the hearing and before the appellant moved the motion, the 1st ? 79th respondents raised an objection to the motion on the ground that the appellant lacked the locus standi to maintain the same on the basis that the appellant, though an interested person, was not a party to the garnishee proceedings for the purpose of being heard. The lower Court overruled the objection, holding that the appellant could, in the circumstance of the case, apply to have the order nisi set aside. The lower Court thereafter considered the merits of
2
the application of the appellant to discharge the order nisi. It ruled against it and dismissed the same. Thereafter the lower Court proceeded to issue a garnishee order absolute against the 2nd garnishee/respondent.
Aggrieved by the decision, the appellant filed an appeal to this Court by way of a notice of appeal filed on 23/2/2009.
Pursuant to the rules of this Court, the parties filed and exchanged briefs of argument as follows:
(1) Appellants amended brief of argument filed on 14/6/2017 and deemed filed on 13/2/2018.
(2) 1st -79th respondents brief of argument filed on 21/2/2018.
(3) 2nd garnishee/81st respondents brief of argument filed on 19/2/2018.
(4) Appellant?s amended reply brief filed on 14/6/2017 and deemed filed on 13/2/2018.
At the hearing of the appeal on 26/3/2019, D.M. Tsevende, Esq. for appellant adopted and relied on the briefs of argument filed on behalf of the appellant in urging the Court to allow the appeal and set aside the decision of the lower Court.
S.O. Idikwu, Esq. (holding the brief of Oche Ulegede, Esq.) for 1st ? 79th respondents adopted and relied
3
on the brief of 1st – 79th respondents in urging the Court to dismiss the appeal.
Mrs F.M. Ebofuame Nezan adopted and relied on the 2nd garnishee?s brief in urging the Court to dismiss the appeal.
In the appellants brief of argument, settled by D.M. Tsevende, Esq. one compound issue is formulated for the determination of the appeal, to wit;
Whether the Benue State High Court had jurisdiction to grant garnishee order nisi against the accounts of the appellants domiciled in Abuja and if the answer is in the negative whether the learned trial Judge was wrong when he refused to set aside the said order nisi and then proceeded to make same absolute. (Distilled from ground 1 and 2 of the Notice and Grounds of Appeal)?.
In the 1st – 79th respondents brief of argument, a single issue is distilled for the determination of the appeal. The issue is:
Whether the Benue State High Court Makurdi has jurisdiction over the account of the appellant operated with the garnishees.
In the 2nd garnishees brief of argument settled by Mrs F.M. Ebofuame ? Nezan, one issue is
4
presented for the determination of the appeal, viz;
Whether in view of online banking operations and technological advancements in Banking, and having regard to the clear provisions of Section 83 (1) of the Sheriffs and Civil Procedure Act, it can be said that the lower Court, had no jurisdiction to issue the garnishee orders subject matter of this appeal.
Before considering the merits of the appeal, it should be mentioned that the 1st – 79th respondents and the 2nd garnishee/respondent filed notices of preliminary objection to the appeal. I intend to deal first with the preliminary objection before considering the merits of the appeal, if necessary.
Counsel for the 1st – 79th respondents submitted that garnishee proceedings are separate proceedings between the judgment creditor and the garnishee though they flow from the judgment that pronounced the debt. He further submitted that it is only the respondents and the garnishees that are/were parties to the garnishee proceedings. He contended that not being a party to the garnishee proceedings, the appellant could only appeal to this Court by leave of Court. Since the
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appellant did not apply for and obtain such leave, the appeal was incompetent, he concluded. In support of his position, counsel cited and relied onDenton ? West V Muoma (2008) All FWLR (Pt. 433) 1423, In Re: Diamond Bank Ltd (2002) 17 NWLR (Pt. 795) 120, and Section 243 (a) of the Constitution of Nigeria, 1999 (as amended), among other authorities.
For 2nd garnishee/81st respondent, arguments to the same effect were offered by its counsel, Mrs F.M. Ebofuame ? Nezan. I therefore do not need to state the arguments here.
In his reply, counsel for the appellant submitted that the preliminary objections are incompetent as they constitute appeals against the decision of the lower Court which are not initiated by notices of appeal as required by law. He noted that the lower Court dismissed the preliminary objection of the 1st ? 79th respondents and the 2nd garnishee to the effect that not being a party, the appellant could not apply for an order of Court to set aside the garnishee order nisi. He noted that the respondents have not appealed against the finding of the lower Court and that it was too late in the day to force a resurrection
6
of the point by way of preliminary objections. He stated that where a finding/decision of a Court is not challenged on appeal, it remains binding and that the respondents can no longer complain against the finding surreptitiously by a preliminary objection.
In regard to the substance of the preliminary objection, it was submitted that all the cases cited by the respondents are clearly different from the facts of the instant case. Counsel set out the cases cited and the distinguishing factors. He thereafter submitted that it was wrong for the respondents to contend that the appellant was not a party to the proceedings leading to this appeal. It was his contention that the cases cited by the respondents did not decide that a judgment debtor is not a party to garnishee proceedings, and that if there was any such decision, the Courts have moved away from that position, as recent decisions are to the effect that a judgment debtor is a party to garnishee proceedings. Counsel called in aidCBN V Auto Import Export (2013) 2 NWLR (Pt. 1337) 80 and Fidelity Bank Plc V Okwuowulu (2013) 6 NWLR (Pt. 1349) 197.
7
Resolution
It is correct, as stated by appellant?s counsel that the respondents objected to the application of the appellant to set aside the order nisi. The objection was to the effect that the appellant was not a party to the garnishee proceedings and therefore it could not bring any application in the proceedings including the application to set aside the garnishee proceedings for want of competence. After reviewing the cases cited by counsel on all sides, the trial Court preferred the case of Onjewu V Kogi State Ministry of Commerce & Industry (2003) FWLR (Pt. 181) 1590 cited by appellant?s counsel. The learned trial Judge concluded as follows:
?This is a clear indication that the judgment debtor can apply to have an order made in a garnishee proceedings set aside in appropriate cases. This preliminary objection therefore fails and it is accordingly dismissed? ? Page 92 of the record of appeal.
That was a definite finding of the learned trial Judge as to whether or not the appellant could bring any application in the proceedings. There is no cross ? appeal challenging the finding. The result is that the respondents are deemed to have accepted it
8
and it is binding. It cannot be considered by the Court not to talk of its being reversed. See Dabo V Abdullahi (2005) 7 NWLR (Pt. 923) 181, 206 and KRK Holdings (Nig) Ltd V First Bank (Nig) Ltd (2017) 3 NWLR (Pt. 1552) 326, 335.
The attempt to challenge the finding of the learned trial Judge by raising the issue by way of a preliminary objection is not known to the law. In the case of Kubor V Dickson (2013) 4 NWLR (Pt. 1345) 534, 564 (B ? D), the respondent raised a preliminary objection to some of the grounds of appeal in the Supreme Court. Similar objection had been raised before and was overruled by the Court of Appeal. The 1st respondent did not appeal against the ruling. Onnoghen JSC, (as he then was) stated,
?if 1st respondent or any respondent is dissatisfied with the above finding/holding by the lower Court, the proper thing to do in law is not to raise the same preliminary objection before this Court but to appeal by way of cross?appeal against the above finding/holding by that Court as that is the only acceptable way to challenge any decision of a Court of law or tribunal?.
9
I find therefore that the preliminary objection of the respondents is incompetent and I accordingly discountenance it.
I now return to the appeal. I shall be guided by the issue/s formulated by the appellant in the determination of the appeal. They represent the complaints of the appellant in the two grounds of appeal better than the issues formulated by respondents? counsel.
In his argument, appellant?s counsel submitted that the lower Court had no jurisdiction to make the garnishee orders against the account of the appellant domiciled in Abuja, outside its jurisdiction. He referred to the ex ? parte motion and stated that it was crystal clear that all the accounts of the appellant to be and, indeed, garnished are domiciled in Abuja. He added that it was immaterial that the bank in which the account to be garnished is maintained has a branch within the jurisdiction of the lower Court; what is relevant, he added, is the place where the account is domiciled. He referred to Section 83 (1) of the Sheriffs and Civil Process Act and contended that for a garnishee order to issue, the garnishee must have the account of the judgment debtor within the state.<br< p=””
</br<
10
Continuing, counsel posited that execution of judgment is part of the compendium of judicial powers under Section 6 of the Constitution of Nigeria, 1999 (as amended). He submitted that for the High Court to exercise its coersive power of execution, the object to be attached, like the appellant?s money, must be within the territorial jurisdiction of the Court. Again, he argued, for debts to be attached vide garnishee proceedings, the Court must be satisfied that the garnishee is within the state otherwise there is no territorial jurisdiction. He stated that it is long established that where the debt is situate is an important determining factor of the Court?s jurisdiction in garnishee proceedings. Reliance was placed on Sokoto State Government V Kamdax (Nig) Ltd (2004) 9 NWLR (Pt. 878) 345.
It was the argument of counsel that for the judgment of the lower Court to be effectively executed by any mode of enforcement in respect of the judgment debtor?s property situated in Abuja, the judgment must be registered in Abuja. Reference was made to Sections 104 ? 107 of the Sheriffs and Civil Process Act. Since the judgment in this instance
11
was not registered in Abuja. Counsel urged the Court to hold that the lower Court had no jurisdiction to make the order nisi absolute. He argued that since the lower Court had no jurisdiction, it ought to have set aside the order nisi. Reliance was placed on Ukachukwu V UBA (2004) 10 NWLR (Pt. 881) 294 among other cases.
On his part, O.D. Obande, Esq., for the 1st ? 79th respondents invited the Court to note that (1) there is only one Zenith Bank Plc and one Guarantee Trust Bank Plc in Nigeria with branches and business offices all over Nigeria (2) the two banks have operating branches in Makurdi (3) The operation of the banks are on ? line, interconnected and accessible throughout Nigeria including Abuja and Makurdi. (4) The appellant was duly served the garnishee process leading to the order absolute but it did not raise the issue of jurisdiction before the order absolute was made etc.
Mrs F.M. Ebofuame ? Nezan for the 2nd garnishee submitted that in view of giant strides and technological advancements attained in banking operations in recent times resulting in innovations of online banking and having regard to Section 83 (1) of
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the Sheriffs and Civil Process Act, the lower Court had the jurisdiction to issue the garnishee order the subject of this appeal. She stated that customers can easily engage in banking transactions from anywhere without necessarily going to the branch where the account was opened. She stated that with technological innovations, the appellant as a customer of the 2nd garnishee can perform any transaction on the garnisheed account at the Makurdi Branch of the said garnishee or any other branch outside Abuja where the account is domiciled. She submitted that if the appellant can have access to his account domiciled in Abuja through the Makurdi Branch, it follows that the lower Court has jurisdiction over the garnisheed account.
It was her further submission that by virtue of the provision of Section 83 (1) of the Sheriffs and Civil Process Act, all that is required is that the garnishee be indebted to the judgment debtor within the state and be resident in the state in which proceedings are brought. She urged the Court to give the sub?section its ordinary and plain meaning. She referred to CBN V Auto Import Export supra for the conditions to be
13
satisfied for a garnishee proceeding to be valid and opined that those conditions were satisfied, especially as the 2nd garnishee has an operating branch within Makurdi. She referred to Sections 104 ? 107 of the Sheriffs and Civil Process Act and submitted that they do not apply. She stated that the law is not ignorant of modern business methods and must not shut its eyes to the mysteries of modern business advancement as demonstrated in FRN v Fani ? Kayode (2010) All FWLR (Pt. 534) 181.
In his reply, appellant?s counsel stated that none of the points made by 2nd garnishee?s counsel is backed by law and should not be countenanced.
RESOLUTION
I shall start with the submission by appellant?s counsel that by virtue of Section 83(1) of the Sheriffs and Civil Process Act, for a garnishee order to issue, the garnishee must have the account of the judgment debtor within the state (where the Court is). 2nd garnishee?s counsel argued to the contrary. Section 83 (1) of the Sheriffs and Civil Process Act provides:
?The Court may, upon the ex?parte application of any person who is entitled to the
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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 costs of the garnishee proceedings and by the same or any 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.?
In the case of Central Bank of Nigeria v Auto Import Export, supra. this Court held that for garnishee proceedings to be valid –
(i)The garnishee must be indebted to the judgment debtor within the state and be resident in the state in which the proceedings
15
are to be brought.
(ii) The proceedings should be filed in any Court in which the judgment debtor could under the High Court (Civil Procedure) Rules or under the appropriate section or Rules governing Civil Procedure in Magistrate?s Courts, as the case may be, sue the garnishee in respect of the debt.
(iii) The application shall be made ex-parte. The Court if satisfied that the judgment creditor is entitled to attach the debt shall make a garnishee order nisi.
(iv) The service of the order nisi on the garnishee binds and attaches the debt in the hands of the garnishee.
The bone of contention is that the 2nd garnishee is not indebted to the appellant within Benue State. Counsel for the appellant invoked the case of Sokoto State Government v Kamdax (Nig) Ltd. (2004) 9 NWLR (Pt. 878) 345, 379 to show that where the debt is situate is an important factor for determination of the Court?s jurisdiction in respect of garnishee proceedings leading to the attachment of the credit balance of third persons in banks having branches within and outside jurisdiction.
In the Sokoto State Government v Kamdax (Nig) Ltd case the judgment debtor
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had account with the Standard Trust Bank Ltd. (the garnishee) domiciled in Sokoto but the garnishee proceedings were commenced in the High Court of Lagos State; the order nisi was served on the garnishee?s registered office in Lagos State. It was argued by the garnishee?s counsel that the High Court of Lagos State had no jurisdiction. The case of Richardson v Richardson (1927) Probate 228 and another were relied upon. In his lead judgment, Aderemi, JCA (as he then was) did not follow Richardson v Richardson supra. but followed the decision of the Court of Appeal (England) in SCF Finance Co. Ltd v Masri (No. 3) (1987) 1 AER where Ralph Gibson L. J. reasoned:
?The decision Richardson v Richardson is not binding on us and it seems to us that the relevant words in Order 49 Rule 1 ?are not to be read as proposed by Hill J. in that case, Order 49 Rule 1 contains no express requirement that the garnishee be indebted within the jurisdiction and we see no reason to read in words to that effect. We accept that in a case where the garnishee is not indebted within the jurisdiction this may be relevant to the exercise of the Court?s
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discretion. Thus Scratton L. J. in Swiss Bank Corp. v Boehmische Industrial Bank (1923) 1KB 673 at 680 ? 681 referred to the earlier decision of this Court in Martin v Nadel (Dresdner Bank garnishee) (1906) 2 KB (on which Hill J) had relied in Richardson v Richardson as a:
?a decision ? that the Court will not make absolute garnishee order where it will not operate to discharge the garnishee in whole or pro tanto from the debt; it will not expose him to the risk of having to pay the debt or part of it twice over. That is well established a principle of discretion on which the Court acts.?
What is clear from the foregoing is that where the garnishee is not indebted to the judgment debtor within jurisdiction, that fact may be relevant to the exercise of the enforcing Court?s discretion (and not jurisdiction) to make the order absolute so long as the judgment debtor is within jurisdiction. The consideration in such an instance as was stated by Bankes, L. J, in Swiss Bank Corp. v Boehmische Industrial Bank supra. and quoted with approval in Sokoto State Government of Nigeria v Kamdax (Nig) Ltd. supra 377 ? 378 ?is:
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?If the debt is situate, in other words if it is properly recoverable, in this country, then it would be discharged by payment under an order of our Courts and the garnishee need have no fear of being required to pay it a second time; but if the debt is situate, that is properly recoverable, in a foreign country, then it is not discharged by payment in this country; and the debtor may be called upon to pay it over again in the foreign Country.?
Following the above, Aderemi, JCA, at page 378 reasoned that:
?The debt has arisen this in country. The sum constituting the debt was held by a banker whose head office is in Lagos and the branch office where the judgment debtor has its funds is in Sokoto. The sum (debt) was held in Sokoto by the banker/garnishee for its customer the judgment ? debtor and not payable until it was demanded in this country. The final demand was by order absolute even applying the equitable principles of tracing, such money when paid in a branch of the bank other than from the head office, it will be unconscionable to call on the bank, the 3rd appellant to re?pay it all over again.?
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His Lordship therefore resolved that the High Court of Lagos State could make a garnishee order nisi to bind an account in Sokoto State Branch of the garnishee bank. On this account, I hold the view that the lower Court had jurisdiction to issue the order nisi since the sum (the debt) is held by the 2nd garnishee within Nigeria and once payment is made in any part of the country (in this case Makurdi) there would be no danger of the 2nd garnishee being called upon to repay in Abuja or any other part of the country.
Appellant?s counsel referred to page 379 of the Sokoto State Government case supra, where Galadima, JCA, as he then was, stated that
?The long established principle in garnishee proceeding is that where the debt is situate determines the jurisdiction of the trial Court: and it is a guide to garnishee proceeding leading eventually to the attachment of the credit balance of the third party. Moreso, in a bank having branches within and outside the Court jurisdiction. See Richardson v Richardson (1927) All ER (Rep.) One of the principles enunciated in this case is that under the contract between banker and
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customer the promise of the bank is to repay the money received from the customer at the branch of the bank where the customer?s account is kept. As already noted, where a creditor seeks to garnishee bank balances of her debtor these balances cannot be made the subject of the garnishee order because they are not debts recoverable within the jurisdiction. It is therefore advisable for the Courts to advert to where the debt to be attached is situated.?
The dictum above was in a large part based on the case of Richardson v Richardson supra. in which it was held that under the contract between the banker and its customer, the promise of the bank is to repay the money received from the customer at the branch where the customer?s account is kept (that is domiciled). I have already shown that Aderemi JCA, in his lead judgment followed the Court of Appeal (England) in its decision in SCF Finance Co. Ltd v Matri supra. which refused to be bound by the Richardson?s case. Besides the world has since moved on from the era of analogue banking to the era of digital banking. The Court must move on with the world or keep step with the dynamism of
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the world so that it (the Court) will not be left behind by the world and so become a fossilized behemoth irrelevant to the modern times. In Packer v Packer (1954) All ER 15 ? 22 Lord Denning MR. deplored a situation where,
The law will stand still while the rest of the world goes on; and that will be too bad for both.?
It will be stating the obvious to say that by the development of on-line banking system, a customer of a bank can obtain payment at any branch of his bank anywhere in the country and not necessarily in the branch where the account is domiciled. The result is that the contract between the banker and its customer has gone beyond what was obtainable in 1927 when Robinson v Robinson was decided and even up to the recent past. Now the contract carries with it a promise to repay the money of the customer anywhere that the banker has a branch. The Court as I have already said cannot close its eyes to developments in the banking sector including on- line banking. See Mudiaga ? Odje v Younes Power System Nigeria Ltd (2014) 5 NWLR (Pt. 1400) 412, 433 and Federal Republic of Nigeria V Fani ? Kayode (2010) ALL FWLR
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(Pt. 534) 181.
If a customer can obtain payment of his money in any branch of his bank, he can also sue in the state where such a branch is situate if payment is wrongly refused. In a garnishee proceeding, the judgment creditor steps into the shoes of the judgment debtor. It follows therefore that if the judgment debtor/appellant can have repayment of its money in the Makurdi Branch of the garnishee and can sue in Makurdi if there is wrongful refusal of payment, the judgment creditors/respondents having stepped into its shoes, can also have payment in Makurdi and sue thereat if there is wrongful refusal of payment. Counsel for the 2nd garnishee was therefore right in submitting at page 12 par. 5. 01 of her brief of argument that
in view of giant strides and great technological advancement attained in banking operations in recent times, resulting in innovations of online banking and having regard to the clear provisions of S. 83 (1) of the Sheriffs and Civil Process Act CAP S 6 LFN, 2004, the lower Court had the jurisdiction to issue the garnishee orders subject matter of this appeal.?
As regards Sections 104 ? 107 of
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the Sheriffs and Civil Process Act which deal with registration of judgment for enforcement in a State other than the one in which it was given, it is my view that they do not apply to the instant matter. This is because the judgment that was sought to be enforced is the judgment of the lower Court and in view of the position I have expressed above regarding the jurisdiction of the Court.
In the light of what have stated so far, I resolve the issue/s for determination against the appellant.
On the whole, I find no merit in the appeal. It fails and I accordingly dismiss the same.
I assess the costs of the appeal at N200,000:00 against the appellant and in favour of the 1st- 79th respondents.
JUMMAI HANNATU SANKEY. J.C.A.: My learned brother, Ekanem, J.C.A., obliged me a draft of the lead Judgment just delivered. I agree with the reasoning leading to the conclusion dismissing the Appeal.
I also dismiss the Appeal and abide by the consequential Orders, including the order as to costs.
ONYEKACHI AJA OTISI, J.C.A.: My Learned Brother, Joseph E. Ekanem, JCA, made available to me, in advance the draft copy
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of the Judgment just delivered in which the instant appeal was dismissed. I am in agreement with the expansive resolution of the issues in controversy. I will only briefly comment below.
A bank branch is an extension of the parent company that carries out similar banking business operations. It is not a separate legal entity. The account holder is the customer of the parent bank and not that of a particular branch of the parent bank, even if his account is domiciled in the particular branch. In modern banking operations, an account domiciled in a branch maybe fully operated in any other branch of the same bank in the Country. Therefore, the relationship between the bank and its customer remains inviolate, irrespective of the branch of the bank from which the account is operated.
?For this reason and for the more detailed reasons in the lead Judgment, I also dismiss the appeal. I abide by the orders made in the lead Judgment, including the order as to costs.
25
Appearances:
D.M. Tsevcnde, Esq.For Appellant(s)
S.O. Idikwu, Esq. holding the brief of Ocha Ulcgede, Esq. for the 1st-
79th respondents.
Mrs F.M. Ebofuame-Netan with her, Messrs A. M. Ewuga, Chima
Chibuzor and S.M. Odoh for 81st respondentFor Respondent(s)
Appearances
D.M. Tsevcnde, Esq.For Appellant
AND
S.O. Idikwu, Esq. holding the brief of Ocha Ulcgede, Esq. for the 1st-
79th respondents.
Mrs F.M. Ebofuame-Netan with her, Messrs A. M. Ewuga, Chima
Chibuzor and S.M. Odoh for 81st respondentFor Respondent
