ZENITH BANK PLC V. CHIEF SUNDAY EDEH & ANOR (2019)

ZENITH BANK PLC V. CHIEF SUNDAY EDEH & ANOR

(2019)LCN/13339(CA)

In The Court of Appeal of Nigeria

On Thursday, the 23rd day of May, 2019

CA/L/315/2018

RATIO

GARNISHEE PROCEEDINGS: GARNISHEE: THE ROLE OF A GARNISHEE IN A GARNISHEE PROCEEDING

This Court held on the Role of a garnishee in a garnishee proceeding in the case of ACCESS BANK v ADEWUSI (Supra) thus;

the materials before the lower Court, the Appellant for some inexplicable reasons carefully evaded filing materials disclosing valid and substantial reasons why the Order Nisi must not be made absolute, the Appellant failed to furnish comprehensive statement of account as required by the order of the lower Court. The Appellant has a duty to ensure that the orders of the lower Court are carried out effectively and completely to conclusion. It does not fall within the duties of the Appellant Bank to proceed to substitute account numbers and present inconclusive statements of account to the Court.

In ZENITH BANK PLC vs. KANO & ORS (2016) LPELR-40335 (CA) Pg.6-8, this Court, Per SANKEY, JCA explained the duty placed on a Garnishee Bank in the following words: “… the onus placed on a Garnishee would only be discharged where it successfully establishes that the account referred to in the Decree Nisi does not exist in its system or if it exists it is heavily in debt and not in credit or that the number stated on the order nisi had since changed to another version. See: Fidelity Bank Plc V Okwuowulu (2012) LPELR-8492 (CA); Citizens International Bank V SCOA (Nig.) Ltd (2006) 18 NWLR (Pt 1011) 334.” See also TOTAL UPSTREAM NIGERIA LTD vs. A.I.C LTD & ORS (2015) LPELR-25388 (CA) Pg. 45, ZENITH BANK PLS vs. OMENAKA & ANOR (2016) LPELR-40327 (CA) pp. 24-26 and U.B.N. PLC vs. BONEY MARCUS IND. LTD (2005) 13 NWLR (pt.943) 654, (2005) LPELR-3394 (SC) Pg. 14-15.PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

IT IS NOT THE COURT’S DUTY TO PICK AND CHOOSE WHICH DEPOSITIONS TO ACCORD RELEVANCE TO

This Court cannot be expected to pick and choose which depositions to accord relevance to, parties confronting the Courts with facts must do so with certainty and some good measure of exactness, parties must not expect the Courts to embark on filtration process to filter the facts. See: DALE POWER SYSTEMS PLC Vs. WITT & BUSCH LIMITED & ANOR (2007) LPELR – 4011 (CA). More so, in the counter – affidavit in opposition to the Appellant’s affidavit to show cause, the Respondents deposed to the fact that the accounts of the Judgment Debtor were subject to a freezing order by the Investment and Securities Tribunal, albeit interim, as argued by the Appellant on 4th December, 2007. The Appellant failed to give any evidence to the contrary or challenge evidence or ipso facto lead any credible evidence to show that the interim order had been discharged.”

per ABUBAKAR, J.C.A (PP. 28-32, PARAS. D-A)PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

GARNISHEE PROCEEDINGS: THE GARNISHEE CANNOT ACT AS AN ADVOCATE FOR THE JUDGMENT DEBTOR

In OCEANIC BANK PLC v OLADEPO & ANOR (2012) LPELR ? 19670 (CA), this Court had an opportunity to address the rising role of the devil’s advocate played by banks in garnishee proceedings, where the Court held thus;

“We have stated, several times, that it is not the business of a Garnishee to undertake to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor. Of course, by playing games of hide and seek with the Court, by failing or refusing to depose to affidavit to show cause, disclosing the true account status of the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst!, It can therefore be made to pay the debt of the judgment debtor, if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody. In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt. Therefore, while alleging that the judgment Debtor does not have sufficient money in his account with the Garnishee to satisfy the judgment debt, the Garnishee has a duty to disclose the true status of the account of the judgment debtor, by exhibiting the account statement of the judgment debtor, as at the relevant date indicated on the Garnishee Order Nisi. This is to enable the trial Court to form an independent opinion as to the ability of the Garnishee to satisfy the judgment debt, either in full or in part. Failure to disclose account detail of a judgment debtor by a garnishee (where insufficient money to settle the debt is alleged) readily raises a presumption that the garnishee has something to hide, and that may be presumed against the garnishee, under-Section 167 (d) of the Evidence Act, 2011.” per MBABA , J.C.A (PP. 21-22, PARAS. C-E)PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

EVIDENCE: PUBLIC DOCUMENTS: WHETHER THERE IS A PRESUMPTION THAT A CERTIFIED TRUE COPY OF A PUBLIC DOCUMENT IS GENUINE

This Court in OLAGUNDOYE & ORS v ALBERT & ORS (2014) LPELR 22980 (CA) on whether a certified true copy of a public document is presumed genuine until the contrary is proved held thus;

“The said Exhibit A of the Applicants was certified by one O. Akiluwade, Registrar High Court of Justice, Okitipupa Ondo State in substantial conformity with the provisions of Sections 111 – 112 Evidence Act Cap 112 LFN 1990 now Sections 104 – 105 of the Evidence Act 2011. The Sections read as follows. “104. (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be. (2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section 105. Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public document of which they purport to be copies. The provisions of Sections 111 – 112 of the Evidence Act Cap. 112 LFN 1990 (now Sections 104 – 105 Evidence Act 2011) are so clearly appropriate to the instant case that one does not need to go as far as to say that in any event the totality of the averments in the Respondents Counter-Affidavit are not sufficient to disprove the presumption of genuineness of certified true copies, presumption of regularity and the presumption of proper custody assumed in favour of the Exhibit A attached to the Applicants’ motion on Notice and the Exhibit B attached to the Applicants’ further affidavit in support which are respectively certified true copies and the true copy of the Appellants’/Applicants’ Notice of Appeal of 19th July, 2010. Section 114, 116 and 117 of the Evidence Act Cap 112 LFN 1990 (now Sections 146 and 168 of the Evidence Act 2011) incorporate in different versions the common law concepts of presumption of genuineness of certified true copies of public documents. Presumption of regularity of official document and presumption of proper custody.”per OWOADE, J.C.A ( PP. 21-23, PARAS. D-A).PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.

JUSTICES

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

ZENITH BANK PLC – Appellant(s)

AND

1. CHIEF SUNDAY EDEH

2. THE NIGERIAN NAVY – Respondent(s)

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against a Ruling/Garnishee Order Absolute made on 12th March, 2015 by the Federal High Court Lagos Division per YINUSA, J. Appellant dissatisfied with the decision filed a notice of appeal on 8th April, 2015.

The fact of this case is that the 1st respondent sued the 2nd respondent (judgement debtor) and got judgement in his favour in the sum of N5,000,000.00. As a step in enforcing the judgement, he commenced garnishee proceedings against the Appellant among other garnishees, the Appellant being the 4th garnishee. The Court granted the decree Nisi on 18th June, 2014 after which all garnishees cited filed affidavit to cause with attached Exhibits and balances in the said account. The lower Court upon a considered ruling made the garnishee absolute on 12th March, 2015 the Appellant dissatisfied appealed to this Court.

?As customary, parties filed and changed briefs, the Appellant brief was filed on 12th July, 2018 together with the reply brief to 1st Respondent filed on 7/11/18 and deemed on 2/5/19 settled by Tajudeen Ganikale of BABS

ADEJUWON & CO.

They settled two issues for determination thus;

1. Whether from the totality of the affidavit evidence before the Court, the trial judge was right to make the order Nisi Absolute against the Appellant?

2. Whether the Documents Exhibits A1 and B2 attached to the 1st Respondent (Judgment Creditor) Counter ? Affidavit dated 11th December, 2014 are not public documents which requires certification having been procured from the Court, and if so whether the trial Court was right in relying on it to make Order Nisi Absolute against the Appellant.

On their part, the 1st Respondent?s brief filed on 30/10/18 settled by Olukoya Ogungbeje Esq and Ogedi Ogu Esq., of LAWFEX CHAMBERS, they also distilled one issue for determination;

Whether the Learned trial judge rightly made the Order nisi absolute against the Appellant.

The 2nd respondent brief filed on 3/20/18 settled by Mallam J. A. Adamu ? Deputy Director, Teju Adeyanju M/S, Esq Senior State Counsel of the Ministry of Defence. Adopted the two issues raised by the Appellant.

APPELLANT?S ARGUMENTS

On issue 1, the Appellant submitted that

the lower Court was wrong in making the decree absolute in the light of sufficient cause shown by the Appellant to be discharged in the affidavit to show cause dated 10th October, 2014 and further affidavit of 11th March, 2015. They both reflected that there was fund standing in the credit of the 2nd Respondent.

He contended that the traditional role of the Appellant is to file an affidavit to show cause in a garnishee proceedings upon receipt of an order Nisi to be made absolute, he submitted that the 1st respondent who was judgement creditor filed a counter affidavit of 11th December, 2014 and attached another affidavit showing cause in a different matter in MRS MARY IKHAJAGBE v LT. BABA ADAMU & ORS, FHC/L/CS/1138/2013.

The 1st respondent attached a letter dated 9th June, 2014 as Exhibit B2 to its counter affidavit of 11th December, 2014 to show that the Appellant had funds belonging to the 2nd respondent in its custody to satisfy the judgement fund. He submitted that the letter was written before the order Nisi of 18th June, 2014 that the lower Court relied on this letter without the statement of account attached to affidavit to show cause and

therefore came to the wrong conclusion.

He referred to Section 83 of Sheriff and Civil Process Act which places onus on the garnishee to show cause and that this was done by the appellant, he referred to ZENITH BANK PLC v OMENAKA & ANOR (2016) LPELR ? 40327 (CA).

Appellant?s counsel submitted that that the letter of 9th June, 2011 is not an account statement that would constitutes proof of sufficient funds in the 2nd respondent?s account. On duty of a Court he cited the cases of OVUNWO v WOKO (2011) 17 NWLR (PT 1277) 522; DUZU v YUNUSA (2010) 19 NWLR (PT 1201) 80; FMWH v CSA LTD (2009) 9 NWLR (PT. 1145) 193 at 221; ADEBAYO v A.G OGUN STATE (2008) 7 NWLR (PT. 1085) 201; NYAWEN v BADON & ORS (2016) LPELR – 40825 (CA) to the point that a Court must resolve all issues.

The Appellant in issue 2 submitted that any public document from a Court requires certification before probative value can be ascribed to it. He cited S. A. ADEYEFA & ORS v BELLO BAMGBOYE (2013) LPELR -19891(SC).

He argued that Exhibits A1 & B1 are Courts document in another case and not certified therefore the Court was wrong to rely on such by

virtue of Section 104 (1) (2) & (3) of Evidence Act, 2011, he relied on ACHU v OKONKWO (2016) LPELR – 41015 (CA). On the whole, he urged the Court to resolve these two issues in their favour.

1st RESPONDENT?S BRIEF

1st Respondent raised a single issue that the learned trial judge rightly made the order Nisi Absolute against the Appellant.

The 1st Respondent on being served with the Appellant?s affidavit to show cause which contained evasive, conflicting and false depositions filed a counter affidavit opposing same. He submitted that the Appellant deposed that the 2nd Respondent had N 2970.00 in Account No: 1011669211 and N 33.00 in Account No: 1011182682. That the same deponent deposed that the 2nd Respondent had N 65.00 in the same Account No: 1011669211 and N 97.00 in the same Account No: 1011182682. He submitted that the garnishee is expected to be transparent and not evasive in discharge of its function in a proceeding. He also stated that a Court cannot be expected to pick and choose which depositions to accord relevance to; parties confronting the Court with facts must do so with certainty. He relied on the case of

ACCESS BANK PLC v ADEWUSI & ORS (2017) ALL FWLR (PT. 883) 1373 at 1399 -1400; and OCEANIC BANK PLC v MICHEAL OLADEPO (2013) 8 WRN 157 at 172, where the Court held that when affidavit to show cause exposes conflicting depositions contained therein, a Court cannot choose which depositions to accord relevance to, and when the garnishee files an evasive, contradictory, conflicting and incorrect deposition the order Nisi will be made against it. He cited DIAMOND BANK PLC v NDUBISI (2002) FWLR (PT 105) at 727.

The 1st Respondent submitted that Exhibit A1 & B2 are certified documentary evidence attached to the counter affidavit filed by the 1st Respondent against Appellants affidavit to show cause and having been an annexure to affidavit evidence are admissible and the learned trial judge rightly relied on them. He stated that the learned trial court used Exhibit B2 as a hanger ? on, coupled with other facts in making the order Nisi. Counsel relied on MALLAM MAGAJI & ORS v ALHAJI BARAU DANKIRANA & ORS (2015) 3 NWLR (PT. 1447) 503 at 519 – 520.

The 1st Respondent argued that the 2nd Appellant is not a party to the proceedings and cannot file a

brief and argue there at. Its trite law that a judgment debtor is not s party to a garnishee proceeding, he relied on NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY v STEPHEN ODEY (2012) 52 W.R.N. 108; UBA v EKANEM (2010) 6 NWLR (PT. 1190) PG 207 at 226; NIGERIAN TELECOMMUNICATIONS PLC v I.C.I.C LTD (2009)16 NWLR (1167) 356 at 387 PARA H.

He contend that if there is no funds in the account why is there much desperation to set aside the decree absolute rightly made by the Court.

The 1st Respondent submit that there is no reason to tamper with the decision of the lower Court as there is cogent reason that there is sufficient funds belong to the 2nd Respondent in the custody of Appellant capable of offsetting the judgement sum in favour of the 1st Respondent.

1st Respondent submits that there is no appeal against the judgment of the Court by the parties delivered in favour of 1st Respondent. He urged that the appeal be dismissed.

2ND RESPONDENT?S ARGUMENT.

The 2nd Respondent adopted the two issues raised by the Appellant, and submitted on issue one that the Court was wrong in making the order nisi absolute, that there was no

affidavit showing sufficient funds for it to have made the order, he relied on WEMA BANK PLC v BRASTEM ? STERR NIG LTD (2011) 6 NWLR 58 CA @ 63; ZENITH BANK PLC v CHIEF GODWIN OMENAKA & ANOR (2016) LPELR ? 40327 (CA) to the point that the affidavit must show the sufficient sum. He further contended that four accounts of the judgement debtor Exhibit A N2, 970.00, Exhibit B N33.00, Exhibit C & D Zero Balance which totalled N3, 003.00.

He contended that the two affidavits were for two separate Courts and were generated at various times and were explained in the further affidavit which was ignored by the lower Court.

On the Court?s duty in these circumstances, he cited EBEM & ANOR v NSEYEN (2016) LPELR ? 40122 (CA) and that this Court should do justice under the circumstance.

On issue 2, he contended that by virtue of Section 104 of the Evidence Act, 2011; all public documents ought to be certified. This was not complied with here, he cited the case of GOVERNOR OF KWARA STATE v LAWAL (2007) 13 NWLR (PT 1051) 360 ? 361; GOODWILL TRUST INVEST LTD v WITT & BUSH LTD (2011) 8 NWLR 500; (2011) LPELR – 133 to

the point that the public documents relied on by the Court was not certified as required by Evidence Act.

He urged that the appeal be allowed.

APPELLANT?S REPLY

The reply brief was basically a rehash of the Appellant?s brief. Appellant submitted that the Court is bound by the records and relied on BARRISTER ORKER JEV & ANOR v SEKAV DZUA IYORTYOM & ORS (2014) SC.

He further contended that the 1st Respondent has not responded to the issues raised in its brief of argument and he relied on OKONGU v NNPC (2011) 16 NWLR (PT. 11272) 22 at 44.

Appellant insisted that Exhibits A1 & BI were not certified by the Court and urged the Court to allow the appeal and set aside the garnishee proceedings.

The issues raised by the Appellant dove tailed into the question of whether the decree order absolute was proper in the circumstances, hence the two issues would be examined together.

RESOLUTION

The first issue involves an examination of all the affidavits filed after the decree nisi, at page 52 of the records is the Affidavit of the garnishee Zenith bank and exhibits of the accounts in the bank in paragraph 5, the

attachments are not statements of account but merely balances in the account, which to my mind is not what the Court asked for, the bank ought to show a full display of the statement and leave it to the discretion of the Court to interpret and decide. This Court held on the Role of a garnishee in a garnishee proceeding in the case of ACCESS BANK v ADEWUSI (Supra) thus;

?the materials before the lower Court, the Appellant for some inexplicable reasons carefully evaded filing materials disclosing valid and substantial reasons why the Order Nisi must not be made absolute, the Appellant failed to furnish comprehensive statement of account as required by the order of the lower Court. The Appellant has a duty to ensure that the orders of the lower Court are carried out effectively and completely to conclusion. It does not fall within the duties of the Appellant Bank to proceed to substitute account numbers and present inconclusive statements of account to the Court. This brings me to the statement made by MACKINNON L.J, in HIRSCHORN vs. EVANS (1939) 2 KB 801, where he said as follows on the duties of a Bank served with Garnishee order “If upon

receiving that summons (For 15 Pounds and 7 shillings), the Bank had any account in their books in the name of Lionel Evans, the Judgment debtor, it would have been their duty not to allow Lionel Evans, to draw cheques upon that account so as to reduce the credit balance below the sum of 15 Pounds and 7 shillings.” The Garnishee Bank must supply the details of the accounts listed and nothing else. I carefully examined the Exhibits A1 and A2, both exhibits relate to different account and cannot in my humble understanding take the place of the statement of account contemplated by the order of the lower Court, a garnishee Bank has obligation to carry out the orders of the Court. In ZENITH BANK PLC vs. KANO & ORS (2016) LPELR-40335 (CA) Pg.6-8, this Court, Per SANKEY, JCA explained the duty placed on a Garnishee Bank in the following words: “… the onus placed on a Garnishee would only be discharged where it successfully establishes that the account referred to in the Decree Nisi does not exist in its system or if it exists it is heavily in debt and not in credit or that the number stated on the order nisi had since changed to another version. See:

Fidelity Bank Plc V Okwuowulu (2012) LPELR-8492 (CA); Citizens International Bank V SCOA (Nig.) Ltd (2006) 18 NWLR (Pt 1011) 334.” See also TOTAL UPSTREAM NIGERIA LTD vs. A.I.C LTD & ORS (2015) LPELR-25388 (CA) Pg. 45, ZENITH BANK PLS vs. OMENAKA & ANOR (2016) LPELR-40327 (CA) pp. 24-26 and U.B.N. PLC vs. BONEY MARCUS IND. LTD (2005) 13 NWLR (pt.943) 654, (2005) LPELR-3394 (SC) Pg. 14-15. The Appellant made reference to Account Numbers 0100308346 and 0400009879 without stating or establishing the nexus between the accounts and the accounts against which the Order Nisi was made and if there was at anytime a change to Account Numbers 0100308346 and 0400009879. It is therefore clear that the Appellant failed to show any Cause at all in respect of the Account Numbers: O008050000000309 and 0008001000013260. The Court is not expected to embark on speculations or logical deductions. Furthermore, the Appellant’s Affidavit in one breadth posited that the Judgment Debtors do not have any account with the Garnishee Bank or any sum at all. On the other hand, it disclosed that the two accounts operated by the Judgment Debtors had since been closed since year 2009 with debit

value in the judgment debtors accounts. It will appear that the depositions contained in the Affidavit to show cause are conflicting and self-contradictory. This Court cannot be expected to pick and choose which depositions to accord relevance to, parties confronting the Courts with facts must do so with certainty and some good measure of exactness, parties must not expect the Courts to embark on filtration process to filter the facts. See: DALE POWER SYSTEMS PLC Vs. WITT & BUSCH LIMITED & ANOR (2007) LPELR – 4011 (CA). More so, in the counter – affidavit in opposition to the Appellant’s affidavit to show cause, the Respondents deposed to the fact that the accounts of the Judgment Debtor were subject to a freezing order by the Investment and Securities Tribunal, albeit interim, as argued by the Appellant on 4th December, 2007. The Appellant failed to give any evidence to the contrary or challenge evidence or ipso facto lead any credible evidence to show that the interim order had been discharged.”

per ABUBAKAR, J.C.A (PP. 28-32, PARAS. D-A)

The applicant filed a counter affidavit to the 4th garnishee?s affidavit to show cause at page 69

thus;

?4. That I have seen and read the affidavit to show cause by the 4th garnishee in this proceedings deposed to by one Salisu Muhammed and I know as a fact that the averments therein are patently false and do not represent the true position of the matter.

5. That I specifically deny paragraph 4, 5 and 6 of the affidavit to show cause

a) That contrary to paragraph 4, 5, and 6, I state that the 1st Judgment debtor maintains four (4) different accounts with the 4th garnishee with sufficient funds in the said accounts to offset the judgement sum.

b) That this position was confirmed by the counsel to the judgement debtor (Mr. Anthony Ibe) in another case involving the 1st judgement debtor before Hon. Justice Buba.

c) That on the 10th of October 2014, the 4th garnishee in an affidavit to show cause was also deposed to by one Salisu Muhammed that the 1st judgement debtor balance was N2970.00 and N33.00 respectively while in another proceedings before Hon Justice Buba, another affidavit to show cause was also deposed by the 1st judgement debtor?s balance was N65.00 and N97.00 respectively. A copy of the affidavit to show cause

is hereby annexed and marked Exhibit A1

d) That in another garnishee case before the Hon. Justice Buba, the 4th garnishee (zenith bank Plc) confirming that the 1st judgement debtor has sufficient funds in its account maintained by the 4th garnishee hurriedly wrote to the chief of Naval staff on the step taken by the 1st judgement debtor to frustrate the garnishee proceedings on the matter to avoid the order being made absolute against Zenith Bank Plc. A copy of the letter is hereby annexed and marked Exhibit B2…

g) That the 4th garnishee (Zenith Bank) has been tampering with its data base with respect to the accounts of the 1st judgement debtor to taunt the Court, depose to falsehood and mislead the Court.”

At page 75 is a copy of the letter showing connivance with the debtor to frustrate the garnishee proceedings signed by legal officer and assistant general manager it is copied to director legal services of Nigerian navy and chief accounts & budgets of Nigerian Navy. From the letter it is clear that there is sufficient funds in the account which if attached will meet the judgement sum.

The bank filed a further affidavit

through its counsel deposed to by Osigbheme Akharueme a litigation clerk, of which I shall reproduce relevant portions;

5(a) that paragraph 4 & 5 A to J of the counter affidavit of the judgement creditor consist of prevarications of facts, outright falsehood and a mix of facts to mislead the Court and are hereby denied.

b) Contrary to paragraphs 5a, b, e and f of the further affidavit that the is no sufficient fund in the account of the judgement debtor with the 4th garnishee to offset the judgement sum.

d) That contrary to paragraph 5 c of the counter affidavit of the judgement creditor, although the two affidavits in issue were deposed on the same date and by the same deponent, but the statement of account attached to the respective affidavits differs because they were generated at different dates.

e) Whilst the statement of account attached to the affidavit of 4th garnishee was generated on the 18/09/2014 to 23/19/2014 the statement of accounts attached to the affidavit exhibited by the judgement creditor was generated on the 01/10/2014 to 08/10/2014.

J) That at any point in time when the bank is served with any order

nisi, it is their usual practice to write to the customer whose account the order is made against to inform the customers of the position…?

In the light of the above at this junction, I must comment that the letter of the bank did more than inform the customer, more so that it was signed by a legal officer who ought to know that the bank owes a duty to the Court especially in a garnishee nisi. The banks forget that when there is a dispute between them and the customer it is the Courts they run to and expect a magic wand, the same statement that was concealed becomes the branded sign post of the banks claim. I shall reproduce relevant portion

?…We kindly urge you to urgently inform us of your position in this matter or if there are other legal steps you are taking so as to avoid the order being made absolute and enforceable against the bank by the Court.?

In addition, after the further affidavit which was not deposed to by a bank official but a litigation office of the firm on authority of the bank officer, it has been repeated that this kind of proceeding should be deposed to by officers of the custodian on oath (bank), in

case of perjury the Court can move against that officer or ask him to be cross examined.

Be that as it may, one would have expected the Appellant to show further proof by exhibiting the whole statement of account for the Court to have a full view and make the necessary orders; it is inevitable to agree with the 1st Respondent that there is a measure of concealment. It is trite that the bank does not own the money in the bank; therefore, it cannot cry more than the bereaved so to speak, it left the lower Court no choice but to proceed and make the orders.

In OCEANIC BANK PLC v OLADEPO & ANOR (2012) LPELR ? 19670 (CA), this Court had an opportunity to address the rising role of the devil?s advocate played by banks in garnishee proceedings, where the Court held thus;

the judgment debtor, the Garnishee only exposes itself to trouble, daring the Court to do its worst!, It can therefore be made to pay the debt of the judgment debtor, if the Court has cause to believe that the failure or refusal to show cause is a deliberate attempt to evade a legal duty under the law, to disclose the true state of account of the judgment debtor in its custody. In that situation, the Court will have no other option than to order the Garnishee to settle the judgment debt, believing that the failure or refusal of the Garnishee to show cause is implied admission of the claim of the judgment Creditor/Applicant, that the Garnishee holds the judgment debtor’s money sufficient to satisfy the judgment debt. Therefore, while alleging that the judgment Debtor does not have sufficient money in his account with the Garnishee to satisfy the judgment debt, the Garnishee has a duty to disclose the true status of the account of the judgment debtor, by exhibiting the account statement of the judgment debtor, as at the relevant date indicated on the Garnishee Order Nisi. This is to enable the trial Court to form an independent opinion as to the ability of the

Garnishee to satisfy the judgment debt, either in full or in part. Failure to disclose account detail of a judgment debtor by a garnishee (where insufficient money to settle the debt is alleged) readily raises a presumption that the garnishee has something to hide, and that may be presumed against the garnishee, under-Section 167 (d) of the Evidence Act, 2011.”

per MBABA , J.C.A (PP. 21-22, PARAS. C-E)

In the light of the above, the Appellant failed to discharge the onus on it to show cause, hence, the decree absolute was made against it.

I resolve these issues against the Appellant.

The Appellant has challenged the use of Exhibits A1 & B1. They are at pages 73 and 74 of the records. On the face of the document, it is stamped certified true copy and at the back, Commissioner for Oath and marked, same is the position of Exhibit B1. It is important to state that the 2nd Respondent (debtor) is not challenging the judgement against him.

These documents emanated from the same Federal High Court and were used in another Court, even the Court order is doubly certified in front and back, the cashier?s stamp is also separate, in my

view the documents are certified by the issuing authority. Exhibit B1 is a private letter but because it was attached to the affidavit in that Court, for it to be tendered as what was presented to the Court, it has to be certified therefore the Appellant was wrong in its arguments. Both documents are certified and the officer signed her name and rank it is more or less substantial compliance.

Furthermore, it?s not clear whether the lower Court relied on these attachments because the proceedings did not mention it, none of the parties made reference to them only facts that counter affidavit and further affidavit were filed, this cumulated the Court?s order of decree absolute.

Going through proceedings of 12th March, 2015, the Appellant made no submission in reply on the documents except to say that a counter affidavit had been filed.

This Court in OLAGUNDOYE & ORS v ALBERT & ORS (2014) LPELR ? 22980 (CA) on whether a certified true copy of a public document is presumed genuine until the contrary is proved held thus;

“The said Exhibit A of the Applicants was certified by one O. Akiluwade, Registrar High Court of

Justice, Okitipupa Ondo State in substantial conformity with the provisions of Sections 111 – 112 Evidence Act Cap 112 LFN 1990 now Sections 104 – 105 of the Evidence Act 2011. The Sections read as follows. “104. (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be. (2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed by such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies. (3) An officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section 105. Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or

parts of the public document of which they purport to be copies. The provisions of Sections 111 – 112 of the Evidence Act Cap. 112 LFN 1990 (now Sections 104 – 105 Evidence Act 2011) are so clearly appropriate to the instant case that one does not need to go as far as to say that in any event the totality of the averments in the Respondents Counter-Affidavit are not sufficient to disprove the presumption of genuineness of certified true copies, presumption of regularity and the presumption of proper custody assumed in favour of the Exhibit A attached to the Applicants’ motion on Notice and the Exhibit B attached to the Applicants’ further affidavit in support which are respectively certified true copies and the true copy of the Appellants’/Applicants’ Notice of Appeal of 19th July, 2010. Section 114, 116 and 117 of the Evidence Act Cap 112 LFN 1990 (now Sections 146 and 168 of the Evidence Act 2011) incorporate in different versions the common law concepts of presumption of genuineness of certified true copies of public documents. Presumption of regularity of official document and presumption of proper custody.”

per OWOADE, J.C.A ( PP. 21-23, PARAS. D-A).

On the whole, there is a presumption of regularity of the exhibits herein.

I resolve this part also in favour of 1st respondent.

The appeal fails, and is dismissed, the ruling of YINUSA, J., of the Federal High Court delivered on the 12th of March, 2015 is affirmed

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I had the privilege of reading in draft the lead judgment of my Lord ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A., just delivered with which I agree and adopt as mine. I have nothing more to add.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the Ruling just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJOMO JCA. I adopt the Ruling as mine with nothing useful to add.

Appearances:

Tajudeen GanikoleFor Appellant(s)

O. E. OgungbejeFor Respondent(s)

Appearances

Tajudeen GanikoleFor Appellant

AND

O. E. OgungbejeFor Respondent