ZENITH BANK PLC v. CHIEF GODWIN OMENAKA & ANOR (2016)

ZENITH BANK PLC v. CHIEF GODWIN OMENAKA & ANOR

(2016)LCN/8302(CA)

In The Court of Appeal of Nigeria

On Monday, the 14th day of March, 2016

CA/YL/108/2015

RATIO

A GARNISHEE PROCEEDING: WHAT A GARNISHEE PROCEEDINGS ENTAILS

A Garnishee proceedings is one by which a judgment creditor originates a third party proceedings against a person indebted to the judgment debtor to pay over directly to the judgment creditor such money as are due to the judgment debtor. per. BIODELE ABRAHAM GEORGEWILL, J.C.A.

BANKING LAW: BANKER/CUSTOMER RELATIONSHIP; THE NATURE OF THE RELATIONSHIP BETWEEN A BANKER AND ITS CUSTOMER IN LAW

In law, by the banker/customer relationship, the money of a customer is in contract and money in the hands of the bank is borrowed from the customer. As such, until it has been demanded for by the customer it remains in the custody and control of the bank for use. The relationship in law between a banker and its customer is therefore, that of Debtor and Creditor. See Yesufu v. African Continental Bank Ltd. (1981) 1 SC 74, where Bello JSC., (as then was later CJN) had @ p. 95 explained these principles of banking law and practice thus: “Where a banker credits the current account of its customer with a certain sum, the banker becomes a debtor to the customer in that sum; Joachimson v. Swiss Bank Corporation (1921) 3 KB 110. And conversely when a bank debits the current accounts of its customer with a certain sum, the customer becomes a debtor to the bank in that sum; See Paget Law of banking. 8th Edition 9.84” See also First Bank of Nigeria Ltd & Anor v. Moba Farms Ltd & Ors (2005) 8 NWLR (Pt. 928) 515; First Inland Bank Plc v. Glory E. Effoing (2010) 16 NWLR (Pt. 1218) 199 @ p. 206; Augustine Chigozie Uba v. Union Bank of Nigeria Plc (1995) 7 NWLR (Pt. 405) 72 @ p. 72. per. BIODELE ABRAHAM GEORGEWILL, J.C.A.

A GARNISHEE PROCEEDING; WHEN WOULD THE ONUS PLACED ON A GARNISHEE BE SAID TO BE DISCHARGED

A Garnishee proceeding is thus a procedure legally approved by law for enforcing a money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor which forms part of his money in the hands of a third party for attachment. Therefore in law, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if exist, it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer. See UBN Plc. v. Boney Marcus Industries Ltd. (2005) All FWLR (Pt. 278) 1037 @ pp. 1046-1047. See also Fidelity Bank Plc. v. Okwuowulu (2012) LPELR-8497(CA); Citizens International Bank v. SCOA (Nig) Ltd. (2006) 18 NWLR (Pt. 1011) 334. per. BIODELE ABRAHAM GEORGEWILL, J.C.A.

A GARNISHEE PROCEEDING; WHETHER A GARNISHEE IS ENTITLED TO THE DEFENSE OF LIEN OR SET OFF

In law, it is now well settled beyond any dispute that a Garnishee is entitled to the defense of lien or set off as rightly recognized even by the Court below. A lien is a legal right reserved in a person to retain another’s property which is rightly and continuously in his possession until present and accrued claims of the person in possession are satisfied. See Afrotec Tech. Serv. (Nig) Ltd. v. Mia & Sons Ltd (2000) 15 NWLR (Pt. 692) 739; OAU v. Olanihun (1996) 8 NWLR (Pt. 464) 123. per. BIODELE ABRAHAM GEORGEWILL, J.C.A.

GARNISHEE PROCEEDING: WHEN DOES THE RIGHT OF SET OFF AND THE RIGHT OF LIEN ACCRUE TO A GARNISHEE

Now, in law while right of set off may not accrue unless and until the debt had matured for payment and thus money standing to the credit of a judgment debtor would be available to satisfy a judgment creditor, the right of lien is not dependent on the maturity of the debt for repayment and thus can be exercised by the bank even before the loan or debt of the customer becomes due to protect itself from suffering unforeseeable losses should the circumstances warrant it. See First Inland Bank Plc v. Glory Effiong (supra). In Fidelity Bank Plc v. Francis Okwuowulu (supra), In Fidelity Bank Plc V. Francis Okwuowulu (supra)this Court per Ogunwumiju, JCA had stated thus: “The authorities are of the view that a garnishee is entitled to set-off any debt to him from the judgment debtor at the date when the order nisi was served upon him and the garnishee is equally entitled to a counter claim against judgment debtor, at any rate where it arises out of the same transaction of the debt sought to be attached. See Tapp v. Jones (1974) LR 10 QB 591 @ P. 593. See also: Hale v. Victoria Plumbing Co. Ltd (1966) 2 QB 746.” per. BIODELE ABRAHAM GEORGEWILL, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

ZENITH BANK PLC – Appellant(s)

AND

1. CHIEF GODWIN OMENAKA

2. ADAMAWA STATE GOVERNMENT – Respondent(s)

BIODELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision contained in the ruling of the High Court of Adamawa State in Suit NO: ADSY/1/2014: Chief Godwin Omenaka v. Adamawa State Government & Anor., delivered on 14/10/2015 by Ambrose D. Mammadi J., in which the Order Nisi made against the Appellant as Garnishee was made absolute in satisfaction of a judgment awarded in favor of the 1st Respondent on 10/5/2012 in Suit No: ADSY/83/2007: Chief Godwin Omenaka v. Yola North Local Government Council & 4 Ors to the tune of N101,079,000.00.

The 1st Respondent who was the judgment creditor had by a Motion Exparte filed on 9/1/2014 sought and obtained the Oder of the Court below granting a Garnishee Decree Nisi against the Appellant and the Appellant was ordered to show cause. The Appellant upon service of the Garnishee Order Nisi on it, filed an affidavit to show cause why the Garnishee Order should not be made absolute. The 1st Respondent joined issue with the Appellant and after hearing the parties, the Court below held that the Appellant had failed to show cause why the Garnishee Order Nisi should not be made

absolute and proceeded to make the Garnishee Order absolute against the Appellant. See pages 3-6; 33-47; 48-49; 72-83 and 84-100 of the Record of Appeal.

The Appellant was dissatisfied with the said ruling and had appealed against it vide a Notice of Appeal filed on 26/10/2015 on two grounds of appeal. The Record of Appeal was duly transmitted to this Court on 16/11/2015. The Appellant’s brief was duly filed on 23/12/2015. The 1st Respondents brief was duly filed on 10/2/2016. The 2nd Respondent did not file any brief.

At the hearing of the Appeal on 16/2/2016, A. B. Babakano, Esq., learned counsel for the Appellant adopted the Appellant’s brief and urged the Court to allow the appeal and to set aside the ruling and order absolute made by the Court below and to discharge the Appellant. On their part, C. O. Ezenwelu Esq., learned Senior counsel for the 1st Respondent with Uche Nwigwe, Esq., adopted the 1st Respondent’s brief and urged the Court to dismiss the appeal for lacking in merit and to affirm the ruling and order absolute made against the Appellant by the Court below. M. A. Umar, Esq., Learned State Counsel 1 for the 2nd Respondent who did not file

any brief told the Court they did not file any brief since Garnishee proceedings is strictly between the Garnishor/Creditor and the Garnishee.

At the Court below, the Appellant as Garnishee ordered to show cause, had filed an affidavit to show cause deposing inter alia thus:”4. That the order was for the Garnishee to show cause why a Garnishee order absolute should not be made attaching that alleged funds or monies belong to the judgment debtor in custody or possession of Garnishee in accounts Nos. 6013912703, 6013912022, and 601392006 for the purpose of satisfying the judgment debt in this matter and for the cost of the application.

5. That the accounts belonging to the judgment debtor, Adamawa State Government, which the Garnishee order Nisi sought to attach are accounts which has the following balances as at the date the order Nisi was served on the Garnishee Bank:

i. Account No. 6013912022 (Nuban No. 1011247747) has a balance of N96,658,991.94 DR.

ii. Account No. 6013922006 (Nuban No. 1011247792) has a debit balance of N1,566,739.96 DR.

iii. Account No. 6013912703 (Nuban No. 1011325467) has a credit balance of N3,587,651,297.71 CR.

?6. That I also know as a fact

that the judgment debtor also has a term loan account No. 3700218383 which has a debit balance of N11,700,547,558.61 Dr as at the date the Garnishee was served with the Garnishee order Nisi.

7. That the Garnishee has a lien over the funds contained in account No. 6013912703 (Nuban No. 10111325467) and same constitutes part of the security of the said facility granted to judgment debtor for which the judgment debtor has executed a letter of set-off. The copy of the letter of set-off is herewith attached and marked as Exhibit A.

8. That there are no funds belonging to the judgment debtor available for attachment in satisfaction of the judgment sum.

?9. That the judgment debtor does not have funds with the Garnishee capable of being attached as the judgment debtor is currently indebted to the Garnishee to the tune of N96,658,991.94 Dr in account No. 6013912022, N1,566,739,971.96 DR in Accounts No. 0613922006 and N11,700,547,568.61 DR in Account No. 3700218384, i.e. the 2 accounts which the Garnishee order sought to attach and the judgment debtor term loan accounts of the judgment debtor and the other letters through which the facilities were granted to the judgment

debtor which are shown to me are herewith attached as Exhibits B, C, D, E, F and G respectively.”

See pages 33 ? 35 of the Record.

Amongst the Exhibits place at before the Court below by the Appellant in support of the affidavit to show cause are the following documents, namely:

1. A letter dated 20/10/2014 stating inter alia as follows:

The Managing Director,

Zenith Bank Plc,

Plot 84, Ajose Adeogun Street,

Victoria Island.

Lagos.

Dear Sir,

AUTHORITY TO SET-OFF OUTSTANDING BALANCE ON THE RESTRUCTURED CREDIT FACILITY OF N12,803,763,500.00 AT MATURITY AGAINST ADAMAWA STATE SRA ACCOUNT FOR ANY ACCOUNT MAINTAINED WITH ZENITH BANK PLC.

We hereby authorize your bank to set-off any outstanding balance on the above stated credit contained in the offer letter dated August 19th, 2014.

Please accept on behalf of his Excellency Barr. Bala James Nggilari, our assurance of highest esteem and considerations.” See page 35 of the Record.

2. A letter dated 15/10/2014, stating inter alia as follows:

Office of the Governor

Adamawa State Government

C/o Office of the State Accountant General

AdamawaAdamawa State

Dear Sir

RESTRUCTURE OF CREDIT FACILITY

We are pleased to advise that the Management

of Zenith Bank Plc, has approved the review of our earlier office of Credit facility vide letter dated August 19, 2014 to your State as requested under the following and conditions:

Lender: Zenith Bank Plc (“Zenith”)

Borrower: Adamawa State Government

Type of Facility: Term Loan

Amount: N12,803,763,500.00

Purpose: To re-finance the State’s existing obligations to Zenith.

Disbursement: The facility shall be made available for drawdown upon satisfactory compliance with the conditions precedent.

Tenor: Sixty Months.

Conditions Precedent:

10. Receipt of letter of Set-off from Adamawa State Government authorizing Zenith to Set-off any outstanding balance of the facility at expiration against its FAAC Account or any other Accounts maintained with Zenith.

Other Conditions

3. Zenith Reserves the right to review the terms and conditions of these facilities from time to time in the light of changing market conditions and also to terminate these banking facilities and accelerate the maturity of your indebtedness based on any adverse, information threatening the basis of this relationship or putting the banking facilities at risk of loss and as a result of any breach of the terms

and conditions of these facilities. Adamawa State Government shall be notified before any decisions is taken in this respect.

4. Zenith Bank reserves the right to security, syndicate or sell its interest in this credit facility based on its global risk/liquidity management objectives during the period of the facility. See pages 41-43 of the Record.

3. A letter dated 2/12/2014 stating inter alia as follows:

Office of the Governor

Adamawa State Government

Government House Yola

Adamawa State

Dear Sir,

OFFER OF CREDIT FACILITY

We are pleased to advise that the Management of Zenith Bank Plc has approved a credit facility for your State as requested under the following terms and conditions:

Lender: Zenith Bank Plc (“Zenith”)

Borrower: Adamawa State Government

Type of Facility: Agric Term Loan (CACS)

Amount: N2,000,000,000.00

Purpose: To finance on-lending to medium and small scale farmers in the State.

?Disbursement: Disbursement of this facility is subject to receipt by Zenith of funds from CBN under the Commercial Agricultural Credit Scheme and compliance with all conditions precedent to draw down.

Security 2: Letter of Set-Off from Adamawa State Government.

Conditions Precedent

10.

Receipt of Letter of Set-off from Adamawa State Government authorizing Zenith to set-off any outstanding balance on the loan at expiration against any of the State Government Parastatals and Ministry Accounts with Zenith.

Other conditions

3. Zenith reserves the right to review the terms and conditions of this facility from time to time in the light of changing market conditions and also to terminate this banking facilities accelerate the maturity of your indebtedness based on any adverse information the basis of this relationship or putting the banking facility at risk of loss and as at a result of any breach of the terms and conditions of this facility. Adamawa State Government shall be notified of any decision taken in this regard.

7. Zenith Bank reserves the right to securities syndicate or sell its interest in this credit facility based on its global risk/liquidity management objectives during the period of the facility. See pages 45 ? 47 of the Record.

It was on the strength of the affidavit of the Appellant as Garnishee that the 1st Respondent as Garnishor filed through his counsel a reply affidavit deposing inter alia thus:

3. That I know as a fact?

that on17/12/2013, the judgment debtor/applicant filed a motion ex parte praying the Court to order a Garnishee order Nisi against the Garnishee the amount standing in the following account numbers of the judgment Debtor/Respondent with the Garnishee: 6013912703 (NUBAN No. 1011325467), 60139129022 (NUBAN No. 1011247747) and 6013922006 (NUBAN No. 1022347792) sufficient to satisfy the judgment Debt of N101,019,000.00 and a cost of N70,000.00 awarded in suit No. ADSY/83/2007 decided by this Court.

4. That I have seen and read the Garnishee?s affidavit 29/7/2015 and I know as a fact that the depositions contained in paragraphs 5, 6, 7, 8, 9, and 11 are not true.

5. That Exhibit “D” attached to the Garnishee’s affidavit, which is one of the Account numbers the Applicant is praying the Court to attach has a credit balance of N3,587,651,297.71 (Three Billion Five Hundred and Eighty Seven Million, Two Hundred and Ninety Seven Thousand, Seventy One Kobo) as at the date the order Nisi was served on the Garnishee bank and there is no order of the Court or a suit before this Court restraining its attachment.

6. That Exhibit “F” and “G” show that the Garnishee and the

judgment debtor/Respondent are in business, leading to offering and restructuring of credit facility.

7. That I know as a fact that if the judgment Creditor/Applicant’s judgment sum and cost awarded are paid through the attachment of account Number 1011325467 it will not prejudiced the Garnishee. See pages 48-49 of the Record.

My lords, it was on the strength of the above state of affidavit and documentary evidence of the Appellant and the 1st Respondent that the Court below had held in its ruling appealed against by the Appellant inter alia thus:

“From the affidavit evidence of the Garnishee and the Exhibits with the submission, it is not disputable that the judgment debtor maintains four accounts with the Garnishee. These accounts are as follows:

a. Exhibit B – Account No. 6013912022 (NUBAN No. 1011247747) with debit balance of N96,658,991.91 DR;b. Exhibit C – Account No. 6013922006 (NUBAN No. 1011247792) with debit balance of N1,556,739,971.96 DR;c. Exhibit D – Account No 6013912703 (NUBAN No. 1011325467) with credit balance of N3,587.651,291.71 CR;d. Exhibit E – Account No. 3700218384 with debit balance of N1,700,547,558.61 DR ?. The total of the sums

in the Exhibits B, C and E amounts to the sum of N13,363,946,532.51 DR from the affidavit evidence the above is the debt owed by the judgment debtor to the Garnishee after merging the three accounts. The judgment debtor has a credit balance of the sum of N3,587,651,291.71 CR. with the Garnishee as per Exhibit C. ? From my reading of the Garnishee affidavit to show cause i.e. paragraph 6. Account no. 3700218384 is the term loan account with a debit balance of N11,700,547,568.61 DR. Even though the Garnishee has not stated in the affidavit how the loan in account No. 3700218384 “E” was served or acquired, I am of the opinion that the loan acquired vide Exhibit “E”. I have the opinion because the Garnishee in paragraph 10 of its affidavit to show cause stated the accounts of the judgment debtor which three are in debit and one is credit and how the facilities were granted but did not tie Exhibits A, F and G to any particular account? I am also of the same opinion that from the affidavit, the facility in Exhibit “C” is the one acquired vide Exhibits G? If my opinion is correct which I hold is so, then the garnishee did not help this Court by

willfully or deliberately refusing to state clearly by what means the facilities in Exhibit “C” and “F” were acquired by the judgment debtor?. before I answer the issue raised, it is clear from the affidavit evidence and the Exhibits before me that the facility in Exhibit “C” as acquired or granted to the judgment debtor vide Exhibit “G” has a tenure or maturity period of 24 months while the facility in Exhibit “E” as acquired or granted vide Exhibit “F” has a maturity period of 60 months. I accordingly so hold? The question is have the facilities in Exhibits “C” and “E” which have a life span or maturity period of 24 months and 60 months accrued for determination to enable it act as a lien or set-off? My answer is that they have not matured and therefore I am of the opinion that they cannot act as lieu or set-off against the judgment sum of the judgment creditor. Furthermore, considering the content of Exhibit “A” in the affidavit filed by the Garnishee to show cause, can set-off or lien apply herein against the judgment sum before the maturity dates or Exhibit “C” as acquired vide Exhibit “G” and Exhibit “E” as acquired vide Exhibit “F” for the

purpose of clarity, I reproduce Exhibit “A” of the garnishee herein?. After reading Exhibit “A” produced above, I have read Exhibit “E” for which Exhibit “F” has categorically given the period of maturity Exhibit “A” provide for set-off at maturity of Exhibit “E” as acquired vide Exhibit “F”. Since Exhibit “A” in the Garnishee affidavit to show cause specifically by the judgment debtor can be made on the date of maturity. I hold that this is a specific agreement of the judgment debtor and the Garnishee which cannot be altered before the due date of maturity of 60 months and 24 months for the purpose of defeating the judgment sum of the judgment creditor. I hold that based on the affidavit and Exhibit “A” in the Garnishee affidavit to show cause no set-off can be applicable to the accounts in Exhibit D and E as acquired vide Exhibit “F” and “G” nor any other account maintained by the judgment debtor with the Garnishee since they have not matured? From the affidavit evidence before me and the Exhibits, I am of the opinion and hold that the Garnishee has not shown sufficient cause not to make a Garnishee Order Nisi Absolute. I have also read Exhibit

“B” which does not indicate when the facility was acquired and therefore does not indicate any date of maturity. However, looking at Exhibit “A” I am of the opinion and hold that the maturity date is the same date as those of Exhibit “C” and “E”, it therefore follows that the account in Exhibit “B” cannot be sued as any set-off or lien on the judgment sum of the agreement creditor before the date of maturity.” See pages 95-100 of the Record.

In the Appellant’s brief, two issues were distilled for determination, namely;

(1) Whether the learned trial judge was right when he held that the Appellant has not shown sufficient cause why the Garnishee Order Nisi should not be made absolute.

(2) Whether the learned trial judge was right when he held that the Garnishee/Appellant cannot exercise the right of lien or set off over the funds on the judgment sum of the Judgment Creditor/1st Respondent before the date of maturity.

In the 1st Respondent’s brief, two issues were also distilled for determination, namely;

(1) Whether from the totality of the affidavit evidence, the trial judge was justified to make the order Nisi absolute?

(2) Whether the trial judge was wrong to

have held that the right of him or set off was not available to the Appellant in the instances of this case?

I have given due consideration to the facts and circumstances as can be seen in the printed Record and it does appear to me that the two issues as distilled by the 1st Respondent are the apt issues arising for determination in this appeal and which shall be considered together and resolved in one fell swoop since the real crux of the issue in this appeal is simply whether the Court below was right when it held that the Appellant had not shown cause why the Garnishee Order Nisi should not be made absolute against the Appellant? A consideration of these two apt issues together would in my view invariably involve a consideration of the two issues as distilled by the Appellant. I shall therefore proceed to do so anon.

ISSUES NOS: 1 & 2 TAKEN TOGETHER

1: Whether from the totality of the affidavit evidence, the trial judge was justified to make the order Nisi absolute?

2: Whether the trial judge was wrong to have held that the right of him or set off was not available to the Appellant in the instances of this case?

Learned counsel for the Appellant had

submitted that from the affidavit evidence adduced before the Court below, the 2nd Respondent is indebted to the Appellant to the tune of N96,658.991.94 DR in Account No.6013912022, the sum of N1,566,739,971.96 DR in Account No. 6013922006 and the sum of N11,700,547,568.61 in the term loan account No.3700218384, which are the 2 other accounts which the Garnishee Order Nisi sought to be attached and the judgment debtor term loan account respectively as in Exhibits A, B, C, D, E, F and G of the Appellants affidavit to show cause.

It was further submitted that the 1st Respondent did not effectively deny or controvert the facts deposed to in the Appellants affidavit showing cause why the Garnishee Nisi Order should not be made absolute and contended that the 1st Respondent was only relying on the fact that one of the accounts sought to be attached by the Garnishee Nisi Order, account No. 6013912703 (NUBAN No. 1011325467) has a credit balance of N3,587,651,291.71 but did not deny or effectively controvert the facts deposed to by the Appellant that the 2nd Respondent is also indebted to the Garnishee to the tune of N96,658,991.94 DR. in account No.

6013912023, the sum of N1,566,739,971.96DR in account No.6013922006, which are the 2 other accounts sought to be attached by the 1st Respondent.

It was further submitted that the 2nd Respondent is also indebted to the Appellant in the sum of N11,700,547,568.61 in the term loan account No. 3700218384 as clearly shown in the Appellants affidavit to show cause together with all the attached Exhibits and contended that the relationship between a bank and its customer is a relationship of debtor and creditor and thus when a bank credits the current account of its customer with a certain sum, the bank becomes a debtor to the customers in that sum and conversely when the bank debits the current account of the customer with a certain sum, the customer becomes a debtor to the bank in that sum and unless precluded by agreement express or if it is a trust account, any two accounts opened in the name of the same person can be combined or merged together by the bank for the purposes of ascertaining the credit or debit status of the customer. Counsel relied on First Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218) @ p. 99.

It was also submitted that the Appellant

is entitled to the defense of lien, which he contends is a legal right reserved in a person to retain anothers property which is rightfully and continuously in his possession until present and accrued claim of the person in possession are satisfied and can be exercised whether a right of set off had become matured or not. Counsel relied on Afrotite Sev. Nig. Ltd V. MIA & Sons Ltd (2000) 5 NWLR (Pt. 692) @ p. 730; OAU v. Olanihan (1996) 8 NWLR (Pt. 464) 123; First Inland Bank v. Glory Effiong (supra)

Learned counsel for the Appellant further submitted that by virtue of Exhibits A, B, C, D, E, F and G attached to the Appellant affidavit to show cause, the Appellant has a lien over the funds contained in Account No. 6013912703 (NUBAN No. 1011325467) as same constituted part of the security of the said facility granted to the 2nd Respondent for which the 2nd Respondent has executed a letter of set-off and contended that the term loan granted to the 2nd Respondent has matured by virtue of Exhibit G, which was for 60 months, the period within which the 2nd Respondent is expected to liquidate the whole debt based on repayment of sixty equal and consecutive

monthly repayment of N311,362,652,10 with effect from 19th August, 2014.

It was also submitted that in law there is a distinction between the right of lien and set off in that while a lien is a legal right reserved in a person to retain another person’s property which is rightfully and continuously in his possession until the present and accrued claims of the person in possession are satisfied, a set-off on the other hand is a counter demand generally of a liquidated debt growing out of an independent transaction for which an action might be maintained in law. Counsel relied on Afrote Nigeria Ltd. v. MIA & Sons Ltd (2000) 5 NWLR (Pt. 692) 730.

It was further submitted that even though the Appellant is in possession of the money belonging to the 2nd Respondent, the money or part of it cannot be paid over to the 1st Respondent because the 2nd respondent is also indebted to the Appellant and contended that a lien or set off is a legitimate defense available to every Garnishee summoned to show cause why the Garnishee Order Nisi should not be made absolute, provided there is evidence to show that the judgment debtor is also indebted to the Garnishee. Counsel

relied on OAU V. Olanihun (1996) 8 NWLR (Pt. 464) 123; Fidelity Bank Plc v. Francis Okwuowulu (2002) LPELR (CA); First Inland Bank Plc v. Glory Effiong (2010) 16 NWLR (Pt. 1218) @ P. 199.

Learned counsel for the Appellant submitted that the Court below was wrong when it held that the Garnishee/Appellant cannot exercise the right of lien or set-off over the funds in its possession before the date of maturity and should pay over the judgment sum to the 1st Respondent and urged the Court to allow the appeal and to set aside the ruling of the Court below and to discharge the Appellant.

On their part, learned counsel for the Respondent had submitted that the Appellant’s affidavit to show cause did not show sufficient cause that will warrant the Court below not to make the Garnishee Order Nisi absolute and contended that the first 3 accounts were attached by the lower Court, with Exhibit “D” having a credit balance of N3,587,651,291,71, while the fourth account Exhibit “E” was only revealed in the Garnishee’s affidavit to show cause and outside Exhibits “B” “C”, “D” AND “E” aforementioned, which were Exhibits A, F and G.

It was further submitted that the deliberate

refusal of the Appellant to attach Exhibits A, F and G to any particular account number having stated that they were offer letters through which the facilities were granted did not help the Appellant’s case and contended a cursory look at Exhibit “F” shows that it is a restructured credit facility on term loan, which relates it to Exhibit E while Exhibit G relates to Exhibit C and thus Exhibit A which is an authority to set-off outstanding balance on the Restructured Credit Facility at Maturity against Adamawa State will only come into effect when the facilities covered by it come into effect when the facilities covered by Exhibits F and G are matured.

It was also submitted that the Appellants claim of right of lien or set-off over funds contained in account No. (NUBAN) 1011325467 was misconceived and untenable because the authority of set-off in Exhibit A ties the Appellant’s power to exercise right of set-off or lien over Exhibits C and E granted through Exhibits G and E that have maturity period of 24 months and 60 months respectively.

Learned counsel for the 1st Respondent submitted that the Court below was right in holding that the right of lien or

set off was not available to the Appellant in that a right of lien or set-off is only as to accrued interest and not when the loan is yet to mature as in the instant appeal even though generally the law is that a Garnishee has a right of set off or lien but on maturity of the loan as agreed in the Exhibits relied upon by the Appellant, which findings were not even appealed against by the Appellant and thus binding whether rightly or wrongly made by the Court below. Counsel relied on Onafowokan v. Wema Bank Plc (2011) ALL FWLR (Pt. 201) 204; Nwaolisah v. Nwabufoh (2011) ALL FWLR (Pt. 591) 1438.

?My lords, the very straight forward and I dare say very simple issue, but made seemingly difficult by the submissions of learned counsel for the respective parties, is whether the Appellant on the strength of its affidavit together with the annexed documentary Exhibits placed before the Court below, and forming part of the Record of Appeal, showed cause why the Garnishee Order Nisi should not be made absolute by the Court below? In other words and very simply put: is the Appellant entitled to the defense of set off and or lien as constituting sufficient cause why the

Garnishee Order Nisi ought not to have been made absolute by the Court below?

I had earlier reproduced in extenso in this judgment the affidavit of the Appellant and the supporting documents and also the reply affidavit of the 1st Respondent. The parties are ad idem to a large extent on some of the crucial issues in this appeal. There is no dispute that on the strength of the copious documentary Exhibits placed before the Court below by the Appellant, the 2nd Respondent/Judgment debtor is a customer to the Appellant and maintains several accounts with the Appellant. In law, the Appellant being a Banking Financial Institution, is clearly in business for the purposes of making profits from its transactions with its customers and not a father Christmas and therefore entitled to due repayments of loans extended to its customers.

?In law, by the banker/customer relationship, the money of a customer is in contract and money in the

hands of the bank is borrowed from the customer. As such, until it has been demanded for by the customer it remains in the custody and control of the bank for use. The relationship in law between a banker and its customer is therefore, that of Debtor and Creditor. See Yesufu v. African Continental Bank Ltd. (1981) 1 SC 74, where Bello JSC., (as then was later CJN) had @ p. 95 explained these principles of banking law and practice thus:

“Where a banker credits the current account of its customer with a certain sum, the banker becomes a debtor to the customer in that sum; Joachimson v. Swiss Bank Corporation (1921) 3 KB 110. And conversely when a bank debits the current accounts of its customer with a certain sum, the customer becomes a debtor to the bank in that sum; See Paget Law of banking. 8th Edition 9.84”

See also First Bank of Nigeria Ltd & Anor v. Moba Farms Ltd & Ors (2005) 8 NWLR (Pt. 928) 515; First Inland Bank Plc v. Glory E. Effoing (2010) 16 NWLR (Pt. 1218) 199 @ p. 206; Augustine Chigozie Uba v. Union Bank of Nigeria Plc (1995) 7 NWLR (Pt. 405) 72 @ p. 72.

A Garnishee proceeding is thus a procedure legally approved by law for enforcing a

money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor which forms part of his money in the hands of a third party for attachment. Therefore in law, the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if exist, it is in debt and not in credit or that it has a right of set off or lien which are due effective against the customer. See UBN Plc. v. Boney Marcus Industries Ltd. (2005) All FWLR (Pt. 278) 1037 @ pp. 1046-1047. See also Fidelity Bank Plc. v. Okwuowulu (2012) LPELR-8497(CA); Citizens International Bank v. SCOA (Nig) Ltd. (2006) 18 NWLR (Pt. 1011) 334.

692) 739; OAU v. Olanihun (1996) 8 NWLR (Pt. 464) 123.

So the question is whether on the facts as furnished before the Court below as in the Record, did the Appellant show a right of set off or lien as would constitute sufficient reason why the Garnishee Order Nisi ought not to have been made absolute by the Court below?

In Fidelity Bank Plc V. Francis Okwuowulu (supra)this Court per Ogunwumiju, JCA had stated thus:

“The authorities are of the view that a garnishee is entitled to set-off any debt to him from the judgment debtor at the date when the order nisi was served upon him and the garnishee is equally entitled to a counter claim against?

judgment debtor, at any rate where it arises out of the same transaction of the debt sought to be attached. See Tapp v. Jones (1974) LR 10 QB 591 @ P. 593. See also: Hale v. Victoria Plumbing Co. Ltd (1966) 2 QB 746.”

In considering the question whether or not the Appellant made out or showed cause why the Garnishee Order Nisi ought not to have been made absolute by the Court below, I think and deem it apposite to consider the relevant provisions of the law governing Garnishee proceedings and the onus placed on a Garnishee ordered to show cause by a Court. The relevant legislation is Section 83 of the Sheriffs and Civil Process Act; which succinctly provides thus:

?”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 of his legal practitioners that judgment has been recovered and that it is still unsatisfied 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 have obtained such judgment or order the debt due to from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with the costs aforesaid.”

In the circumstances in which it is of common ground between the parties that the 2nd Respondent/Judgment Debtors operates several accounts with the Appellant, it is important to bear it in mind that in law unless an account is a trust account, any two or more accounts opened in the name of the same person can be combined or merged together unless there is an agreement to the contrary. See First Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218) 99.

?A banker such as the Appellant is thus in law entitled to combine the several accounts of the 2nd Respondent for the purposes of determining the amount standing either to the credit or debit of the customer. See Halsbury’s Laws

of England Vol. 2, 3rd Edition paragraph 32 at page 172 stated the legal position thus:

“Unless precluded by agreement, express or implied from the course of business, the banker is entitled to combine different accounts kept by the Customer in his own rights even though at different branches of the same bank, and to treat the balance, if any as the amounts really standing to his credit.”

My lords, having reiterated the relevant and applicable principles of law, let me now consider the facts as placed before the Court below to see whether or not the Court below was right when it held that though the Appellant generally has a right of set off and or lien over the funds of the 2nd Respondent/Judgment debtor in its custody but in the circumstances of this case those rights were not yet available to the Appellant since the debts due or loans were not yet matured for repayment and thus the Appellant did not show any cause why the Garnishee Order Nisi should not be made absolute.

?In the affidavit to show cause, it was placed before the Court below that the 2nd Respondent had, in addition to the only three accounts brought to its attention by the 1st Respondent in the

application exparte for Garnishee Order Nisi, a fourth account of a term loan with a debit balance of N11,700,547,558.61 and that a combination of the several accounts of the 2nd Respondent/Judgment debtors would show readily that the 2nd Respondent/Judgment debtor is heavily indebted to the Appellant in Exhibits B, C, and E and thus had no credit to its name that could be paid over to the 1st Respondent/Judgment creditor in satisfaction of the judgment debt. In proof of these depositions the Appellant furnished before the Court below Exhibits B, C, E, F and G. In Exhibit E alone, the 1st Respondent is shown to be indebted to the Appellant in the sum of N11,700,547,558.61 on Account no. 3700218383, an amount far in excess of the judgment debt sought to be recovered from the Appellant by the 1st Respondent/Judgment Creditor.

?In response what did the 1st Respondent say in his reply affidavit? He authorized his counsel to respond on his behalf to state that so long as there is standing to the credit of the 2nd Respondent/Judgment debtor the sum of N3,587,651,296.71 to its credit in Account no. 1011325467, it was sufficient to cover the judgment sum and was rightly

attached in satisfaction thereof, and I may add this is notwithstanding the several documents showing the high level of indebtedness of the 2nd Respondent/Judgment debtor to the Appellant.

So did the 1st Respondent succeed in challenging the contents of affidavit of the Appellant as placed before the Court below as to the crucial issue of fact of the heavy indebtedness of the 2nd Respondent/Judgment debtor to the Appellant? I think not. The law is well settled that specific allegation of facts contained in an affidavit must be specifically denied as general or bare or banal traverse or denial leaves such allegations of facts as deemed admitted and thus requiring no further proof. This was what the 1st Respondent simply did through his counsel when they deposed on his behalf that “I know as a fact that the depositions contained in paragraphs 5, 6, 7, 8, 9, 10 and 11 are not true.” In law such general denial amounts to nothing! See Raphael Nwakwo v. Japhet Ofomata (2009) 11 NWLR (Pt. 1153) 496, where this Court per Sanusi, J.C.A. (as he then was now JSC) stated emphatically thus:

“The law is trite and well settled too, that where a party denies a deposition in an

affidavit or pleadings, he must depose to facts which he wants the Court to accept and not just make a general or sweeping denial like that as in the instant case.”

See Thanni v. Saibu (1977) 2 SC 123; Ogunsola v. Usman (2002) 14 NWLR (Pt. 788) 636;

Chief Biodun Olujinmi v. Ekiti State House of Assembly & Anor (2009) 11 NWLR (Pt. 1153) 464.

It follows therefore that since the 1st Respondent had no answer to the facts as deposed by the Appellant on the state of heavy indebtedness of the 2nd Respondent/Judgment debtor to the Appellant, that ought to have been the end of the matter as a banker to whom a judgment debtors is as well indebted to has no duty paying over any money not available to a judgment creditor on behalf of a judgment debtor also indebted to the bank. In law, the depositions in the affidavit of the Appellant having not been countered by the 1st Respondent/Judgment creditor, those depositions remained unchallenged and ought to have been acted upon by Court below. See Effang Effiom Henshaw v. Effang Essien Effanga (2009) 11 NWLR (Pt. 1153) 65. See also Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 444; Adeleke v. Iyanda (2001) 13 NWLR (Pt.

729) 1

My lords, having held that by Exhibit E, the 2nd Respondent/Judgment was shown to be heavily indebted to the Appellant in sums far and above the N3,587,651,291.71 CR in Account No. 6013912703 NUBAN No. 1011325467, the Court below ought to have held that the Appellant showed sufficient cause why the Garnishee Order Nisi Ought not to be made absolute.

However, the view and finding of the Court below was that since the Exhibit E was the product of a term loan which maturity period of 60 months was not yet due, the Appellant cannot rely on the defense of right of set off or right of lien over the funds of the 2nd Respondent/Judgment debtor in its account in credit as in Exhibit D and therefore made the Garnishee Order Nisi absolute on that account. Was the Court below right or wrong in its decision to the above effect?

It has been submitted for the Appellant that in law a bank has the right to merge several accounts of a customer with it to determine the credit standing of the customer so long as the account is not a trust account and there was also no agreement to the contrary between the parties. It was also submitted for the Appellant that with the heavy

indebtedness of the 2nd Respondent to the Appellant as in Exhibit E, the Appellant has a right of lien on the credit standing to 2nd Respondent in Exhibit D, notwithstanding the maturity date of the loan in Exhibit E.

On the other hand, it was submitted for the 1st Respondent/Judgment Creditor that in so far as the term loan in Exhibit E was not matured for repayment, the Appellant has no right of lien over the credit standing to the 2nd Respondent/Judgment Debtor in Exhibit C, which was thus available to be attached and that the Garnishee Order Nisi was thus rightly made absolute by the Court below.

The answer to these divergent contention is one simply well settled in law and can be found by the profound statement on the law by this Court in First Inland Bank Plc. v. Effiong (supra) @ p. 207, this Court per Aka’ahs JCA (as he then was now JSC.,) had put this issue in its proper perspective thus:

“In the affidavit to show cause why it should not pay the judgment debtor, the Appellant annexed Exhibits CA1 and CA2 to show that the judgment debtor did not have any credit balance in appellant bank. Instead it was owing the bank because of the loans the bank

has advanced to the judgment debtor. The Court was wrong to conclude that since the loans were secured, the Appellant could not claim a lien over the credit balance in the judgment debtor’s account. As the judgment debtor owed more than the amount standing to its credit, it was a debtor to the bank and there is nothing to show that the current account the judgment debtor maintained with the banks was held in trust for another person, and so could not be merged with the loan account. Furthermore, there is no argument or finding that the various loans granted to the judgment debtor had been liquidated which left the judgment debtor with a credit balance that could be attached and garnished by the judgment creditor/Respondent.”

In my finding therefore, not only has the Appellant the plenitude of right and power in the absence of any agreement to the contrary to merge all the several accounts of the 2nd Respondent/Judgment Debtor in Exhibits B, C, D and E to determine the credit or debit standing of the 2nd Respondent/Judgment debtor, it also has in law a lien over the credit balance in Exhibit D which far less than the huge debt of the 2nd

Respondent/Judgment Debtor in Exhibit E and that the Appellant’s right of lien is alive, active and effective and not dependent on the maturity of term loan being not a claim in set off which ordinarily would not arise until the due maturity date for repayment of a loan. See Afrotec Tech. Serv. (Nig) Ltd. v. Mia & Sons Ltd (2000) 15 NWLR (Pt. 692) 739. See also OAU v. Olanihun (1996) 8 NWLR (Pt. 464) 123; UBN Plc. v. Boney Marcus Industries Ltd. (2005) All FWLR (Pt. 278) 1037 @ pp. 1046-1047; Fidelity Bank Plc. v. Okwuowulu (2012) LPELR-8497(CA); Citizens International Bank v. SCOA (Nig) Ltd. (2006) 18 NWLR (Pt. 1011) 334; First Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218) 99.

The Court below appears to have been too fixated on the credit in Exhibit D and fell into grave error when it held that the Appellant was not entitle to a right of lien over the credit in Exhibit D when it was shown clearly the uncontroverted heavy indebtedness of the 2nd Respondent/Judgment Debtor to the Appellant in Exhibit E. The Court in its bid to justify its position even veered off into so much speculation of the affidavit evidence of the Appellant, to which there was

nothing put in challenge of it by the 1st Respondent/Judgment Creditor when it stated inter alia thus:

“I have also read Exhibit “B” which does not indicate when the facility was acquired and therefore does not indicate any date of maturity. However, looking at Exhibit “A” I am of the opinion and hold that the maturity date is the same date as those of Exhibit “C” and “E”, it therefore follows that the account in Exhibit “B” cannot be sued as any set-off or lien on the judgment sum of the agreement creditor before the date of maturity.”

See page 100 of the Record.

I therefore cannot but agree with the apt and unassailable submissions of learned counsel for the Appellant that the Court below ought to have averted its mind sufficiently to the largely unchallenged affidavit evidence of the Appellant and had it done so it would not had come to the perverse finding as it did that the Appellant did not show sufficient cause why the Garnishee Order Nisi ought not to have been made absolute. Consequently, it is my view and I so hold that the evaluation of the evidence by the Court below was skewed and deficient as clearly the unchallenged evidence before it was most

inadequately considered by it. If the learned trial judge had properly considered the unchallenged evidence before him in the light of the relevant and applicable principles of law and without jettisoning in a hurry the decision in Afrotec Services Nig. Ltd v. MIA and Sons Ltd (supra) and OAU v. Olanihun (supra) as he did at page 97 of the Record of Appeal, he should not have arrived at the perverse conclusion he did. See H. S. Engineering Ltd v. S. A. Yakubu Nig. Ltd. (2009) 10 NWLR (Pt. 1149) 416. See also Ajomale v. Yaduat (No. 2) (1991) 5 NWLR (Pt. 191) 257 @ pp. 282-283.

My lords, the 2nd Respondent/Judgment Debtor had not filed any brief and had also not urged anything at the hearing of this appeal and that is understandably so as in law he is but a mere passive or nominal party in a Garnishee proceeding, which is strictly between the Ganishor/Judgment Creditor and the Garnishee. See Wema Bank v. Brasterm Sterr Nig Ltd. (2012) All FWLR (Pt. 624) 107 @ pp. 111-112.

In the light of my findings above, I have no difficulty resolving the first issue for determination in the negative against the 1st Respondent in favor of the Appellant, resolving the second

issue if the positive in favor of the Appellant against the 1st Respondent. I hold firmly therefore, that the appeal has merit and ought to be allowed. It is hereby allowed.

In the result, the ruling of the High Court of Adamawa State in Suit No. ADSY/1/2014: Chief Godwin Omenaka v. Adamawa State Government & Anor delivered on 14/10/2015 by Ambrose D. Mammadi J., wherein it made a Garnishee Order Absolute against the Appellant is hereby set aside. The Appellant/Garnishee is hereby discharged. There shall be no order as to cost.

TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of reading in draft the lead Judgment just delivered by my learned brother Biobele Abraham Georgewill, J.C.A.

His Lordship characteristically dealt with all the live issues that call for determination in this appeal and rightly resolved same in favour of the Appellant. I too allow the appeal and abide by all the consequential orders therein contained.

? JUMMAI HANNATU SANEKY, J.C.A.: I agree.

Appearances

A. B. Babakano, Esq.For Appellant

AND

C. O. Ezenwelu, Esq. with him, Uche Nwigwe, Esq.

M. A. Umar, Esq. (State Counsel 1)For Respondent