IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE KADUNA JUDICIAL DIVISION

HOLDEN AT KADUNA

BEFORE HIS LORDSHIP HON. JUSTICE BASHAR A. ALKALI

DATE: TUESDAY 14TH MAY, 2024

SUIT NO: NICN/KD/05M/2023

BETWEEN:

EMMANUEL D. BYIS…………………...JUDGMENT CREDITOR

AND

1.     KADUNA STATE GOVERNMENT

2.     KADUNA STATE WATER CORPORATION       JUDGMENT

3.     ATTORNEY GENERAL OF KADUNA STATE    DEBTORS

AND

1.     UNITED BANK FOR AFRICA PLC

2.     GUARANTY TRUST BANK PLC

3.     ZENITH BANK PLC

4.     HERITAGE BANK PLC                                            GARNISHEES

5.     POLARIS BANK PLC

 

REPRESENTATION

 J.O.K. Irikefe Esq for the Judgment Creditor/Applicant

O.J. Babajide Esq for the 1st Garnishee

C.O. Onuorah Esq holding the brief of Ray Emeto Esq Counsel to the 3rd Garnishee

 

 

RULING/JUDGMENT

INTRODUCTION

Upon the hearing of an Ex-parte application filed on the 25th of July 2023, this Court on the 27th of July 2023 ordered as follows:

a.     An Order Nisi is hereby issued against the Garnishee name; United Bank for Africa Plc, Guaranty Trust Bank Plc, Zenith Bank Plc, Heritage Bank Plc and Polaris Bank Plc to show cause why they shall not pay to the applicant the sum of Six Million Six Hundred and Forty-Nine Thousand, Eight Hundred and Thirty-Four Naira, Four Kobo (N6,649,834.04) only awarded in favour of the Applicant.

 

b.    The Judgment Debtors had failed and/or refused to pay the judgment sum which now stands in the credit of the Judgment Debtors in the accounts with the Garnishees.

 

c.     The Order shall be served on the Judgment Debtors and the Garnishees.

 

d.    The Garnishees shall show cause within 14 (fourteen) days of being served with the Order.

At the plenary trial on the 14th of March 2024, Counsel for the 1st Garnishee O. J. Babajide, Esq identified the Affidavit to show cause filed on behalf of the 1st Garnishee on the 26th of September 2023 and the Further and Better Affidavit on the 30th of January 2024. These affidavits were deposed to by one Balqees Lawal, a litigation secretary in the law firm of Counsel for the 1st Garnishee. Attached with the Further and Better Affidavit are Exhibits CNA1, CNA2 and CNA3 and adopted the same while urging the Court to discharge the 1st Garnishee. That there is existing lien attached to the available funds and it is not a checking account. Referred to section 87 of the Sheriff and Civil Process Act.

Responding to Counsel for the 1st Garnishee, J. O. K. Irikefe, Esq, Counsel for the Judgment Creditor identified a Counter-Affidavit filed on the 3rd of October 2023. Attached with the affidavit is Exhibit 1, the Judgment Creditor filed another Affidavit on the 2nd of February 2024, the two affidavits were deposed to by one D. C. Amos, Esq. a legal practitioner in the law firm of the Judgment Creditor’s Counsel. Counsel adopted these processes and urged the Court to make the order nisi absolute.

Counsel for the 3rd Garnishee, Raymond Emeto, Esq identified the affaidavit to show cause filed on the 31st of January 2024, attached with this Affidavit are Exhibits ZB1 and ZB2. Counsel also identified a Further and Better Affidavit filed on the 14th of February 2024; attached therewith is Exhibit ZB1B. these affidavits were deposed to by one Jemima Mohammed, a litigation secretary in the law firm of Counsel for the 3rd Garnishee. Counsel adopted these processes and urged the Court to discharge the 3rd Garnishee. Submitted that the 3rd Garnishee has a loan agreement with Judgment Debtors to the tune of N12 billion and the 3rd Garnishee has a right of set-off cited the case of Fidelity Bank Plc v Mr. Francis Ofuowolo & Anor (2012) All FWLR (Pt. 644) at P. 151.

Responding to the 3rd Garnishee, Counsel for the Judgment Creditor identified a Counter-Affidavit filed on the 2nd of February 2024, and the affidavit was deposed to by one Blessing Gideon. Attached with the affidavit is Exhibit BY1, counsel adopted this process and urged the Court to make the order nisi absolute. Cited the case of Zenith Bank Plc vs. Omenaka & Anor (2016) LPELR-40327 and submitted that the loan in Exhibit ZB2 the maturity of which is in 2035.

Counsel for the 5th Garnishee, A. M. Adama, Esq., identified an affidavit to show cause filed on the 2nd of February 2024, the affidavit was deposed to by A. M. Adama, Esq. Counsel identified a further and better affidavit filed on the 5th of March 2024 deposed to by one Faruk Mohammed Suleiman, the relationship manager of the 5th Garnishee, counsel adopted these processes and urged the Court to discharge the 5th Garnishee.

Responding to the 5th Garnishee, Counsel for the Judgment Creditor identified a 5-paragraph Counter-Affidavit filed on the 26th of February 2024 deposed to by one Blessing Gideon, attached therewith is Exhibit MG1. Counsel adopted this process and urged the Court to make the order nisi absolute.  

AFFIDAVIT TO SHOW CAUSE OF THE 1ST GARNISHEE

The 1st Garnishee stated that the 1st Garnishee in Suit No. KDH/KAD/301/2023 between Magnos Project Pro Limited V. Health Supplies Management Agency Kaduna State, Kaduna State Government & United Bank for Africa Plc at the High Court of Kaduna State filed a Further and Better Affidavit sworn on 11/07/2023 stating the facts in issue with regard to the nature of the stated account disclosed and the encumbrances attached to the said account and the 1 Garnishee was discharged by the Honourable Justice N.U Sadiq thereof. That the Judgment Creditor intentionally and deliberately failed to disclose before this Honourable Court the further and better affidavit filed by the 1st Garnishee in Suit No, KDH/KAD/301/2023 between Magnos Project Pro Limited V. Health Supplies Management Agency Kaduna State, Kaduna State Government & United Bank for Africa Plc (as 1st Garnishee) in his counter affidavit.

That the 1st Garnishee never stated on oath that it maintains Account No. 1019190285 in the name of Kaduna State Government Account as wrongly and erroneously captured by the judgment creditor in paragraph 4 (d) of his counter affidavit. That Account No. 1019190285 with Account Name: Kaduna State Government Revenue Account was not specifically garnished by order nisi of this Honourable Court. That the 1st, 2nd and 3rd Judgment Debtors as stated on the face of the order nisi of this Honourable Court does not maintain any account(s) in the names therein with the 1st Garnishee.

That Account Number 1019190285 is a Non-Chequing Account and its not capable of being attached in satisfaction of any Judgment debt as the funds therein are revenue generated through Pay Direct and regulated only by Kaduna State Internal Revenue Services before for disbursement and queries from tax-payers in Kaduna State. That the 1st Garnishee equally has a right of first lien over Account Number 1019190285 as gleaned from Exhibit CNA1 and there is no funds in this said account to be attached by the order of this court. That there equally exists earlier pending order nisi dated 5/6/2023 in Suit No. KDH/KADI284/2023 between Raybreeds Construction Limited V Government of Kaduna State & 4 Others V. United Bank for Africa Plc (as 1st Garnishee) at the Kaduna State High Court with a Judgment Sum of N149,734,793.89K.

JUDGMENT CREDITOR’S COUNTER AFFIDAVIT TO THE 1ST GARNISHEE’S AFFIDAVIT

The Judgment Creditor stated that upon being served with the garnishee order nisi, the 1st Garnishee filed an affidavit to show on 26th of September 2023. That in the said affidavit to show cause, the 1st Garnishee deposed that the judgment debtors do not maintain any account with them. That the facts in the 1st Garnishee's affidavit are completely untrue as the judgment creditor's counsel herein commenced a garnishee proceeding in suit no. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State wherein the 1st Garnishee disclosed that it maintains Kaduna State Government Account with Account No. 1019190285. The 1st Garnishee herein is shielding the judgment debtors' account from being garnisheed by this court and depriving the judgment creditor of the fruits of his judgment.

That the judgment creditor did not mislead this court as the 3rd garnishee herein who was 12th Garnishee in suit no. KDH/KAD/301/2023 MAGNOS PROJECT PRO LIMITED V. HEALTH AND SUPPLIES MANAGEMENT AGENCY, KADUNA STATE, KADUNA STATE GOVERNMENT & ATTORNEY GENERAL OF KADUNA STATE agreed to pay the judgment sum and the garnishee order was made against it while the 1st garnishee was discharged not based on the affidavit in 1st garnishee's exhibit CNA1.

That the issues in the 1st garnishee's exhibit CNA1 was never addressed by the court in suit no. KDH/KAD/301/2023 MAGNOS PROJECT PRO LIMITED V. HEALTH AND SUPPLIES MANAGEMENT AGENCY, KADUNA STATE, KADUNA STATE GOVERNMENT & ATTORNEY GENERAL OF KADUNA STATE. That the account with no 1019190285 in the name of "Kaduna state revenue account" as admitted by the 1st garnishee belongs to the 1st judgment debtor and does not need to be specifically garnisheed by indicating the account number before the 1st garnishee can disclose same.

That the fact of the account being a non-chequing account not capable of being garnisheed as well as all assertions in paragraph 11 of the 1 garnishee's further and better affidavit to show cause is not supported by any documentary evidence or law. The 1st Garnishee has no first lien on the account as the loan was collected by a separate company named Kaduna Skipper power Limited with its registered office situate in Lagos State and the said company has a separate legal personality from the 1st Judgment Debtor. The loan given to the said Kaduna Skipper Power Limited is not charged to the revenue of Kaduna State in custody of the 1st garnishee but to the proceeds of sales of the power generated by the said Kaduna Skipper Power Limited and the Federal account allocation of Kaduna State with the accountant general of the Federation as can be gleaned from the Exhibits SA2 SA8 attached to the 1st Garnishee's exhibit CNA1 herein.

The judgment sum garnisheed in Suit no. KDH/KAD/284/2023 Raybreed Construction Limited V. Kaduna State Government in the sum of N149, 734,793.89 is less that balance in the account statement attached to the 1st garnishee's exhibit CNA1 herein as exhibit SA9 and as exhibit 1 to our earlier counter affidavit in this case which is N519, 077,946.20.

 

 

AFFIDAVIT TO SHOW CAUSE OF THE 3RD GARNISHEE

The 3rd Garnishee stated that the Court issued a Garnishee Order Nisi against the 3rd Garnishee and others to show cause why an Order should not be made to attach the monies of the Judgement Debtors in the hands of the 3rd Garnishee as may be sufficient to satisfy the judgment sum. That the Order Nisi was duly served on the 3rd Garnishee; the 3rd Garnishee carried out a thorough and comprehensive search on its accounts and database which revealed that the Kaduna State Government is heavily indebted to the 3rd Garnishee at present to the tune of over N12, 354, 337, 169. 59 by virtue of CBN Bailout Intervention Loans obtained from the 3rd Garnishee

The Kaduna State Government maintains account Number 1228600665 in the books of the 3rd Garnishee and the 3rd Garnishee has a right of set-off over the credit balance in the said account in the letter and spirit of the Loan Agreement. That the 3rd Garnishee's in-house Solicitor who briefed O. I. Habeeb & Co mistakenly caused the judgement debt of N58, 903. 146. 28 to be placed on lien in the said account and proceeded to brief O. I Habeeb & Co to that effect without averting his mind to the running credit facility of over N12Billion which the Kaduna State Government is owing the 3rd Garnishee;

That the true position is that the Kaduna State Government is heavily indebted to the 3rd Garnishee to the tune of N12Billion Naira and the repayment of the said facility is charged on the said account and the 3rd Garnishee has a right of set - off over the credit balance in the account and any other account by virtue of the set-off covenant Contained in the Loan Agreement. The 3rd Garnishee, as a responsible corporate organization, is not shielding the Judgement Debtors.

JUDGMENT CREDITOR’S COUNTER AFFIDAVIT TO THE 3RD GARNISHEE’S AFFIDAVIT

The Judgment Creditor stated that the 3rd Garnishee in the affidavit disclosed that the 1st Defendant maintains account with it but that the 1st Defendant is indebted to the bank to the tune of N12, 354,337,169.59 wherein the loan statement of account and the offer letter were attached as Exhibits ZB1 and ZB2 respectively. The 3rd garnishee refused to disclose the statement of account of the 1st Judgment Debtor which would have disclosed the balance on the account of the 1st Judgment debtor, rather chose to only disclose the loan statement of account. The 3rd Garnishee also represented by the counsel herein named Ray Emeto, Esq. had earlier in another garnishee proceedings in suit no. KDG/KAD/302/2023 Echuda Nigeria Limited V. Rural Water Supply Agency, Kaduna State disclosed an account with no. 1228600665 with a balance of N115, 822,000.36.

By the 3rd garnishee's exhibit ZB2, the loan repayment source and repayment terms is that same shall be deducted from the statutory allocation of Kaduna state from source at the Federal Revenue allocation of the state as can be gleaned from the 3rd Garnishee's ZB2. The 3rd Garnishee had earlier in suit no. KDH/KAD/301/2023 MAGNOS PROJECT PRO LIMITED V. HEALTH AND SUPPLIES MANAGEMENT AGENCY, KADUNA STATE, KADUNA STATE GOVERNMENT & ATTORNEY GENERAL OF KADUNA STATE deposed that the attorney General of Kaduna State being the 3rd Judgment Debtor in this case has sufficient funds in their account with it.

The Garnishee order nisi in the said suit no. KDH/KAD/301/2023 MAGNOS PROJECT PRO LIMITED V. HEALTH AND SUPPLIES MANAGEMENT AGENCY, KADUNA STATE, KADUNA STATE GOVERNMENT & ATTORNEY GENERAL OF KADUNA STATE was made absolute in respect of the account of 3rd judgment debtor which had been paid by the 3rd Garnishee vide bank drafts. That the 3rd Garnishee is shielding the judgment debtors by refusing to disclose the sums in their possession belonging to the said judgment debtors.

 

 

AFFIDAVIT TO SHOW CAUSE OF THE 5TH GARNISHEE

A particular account number was quoted in the order Nisi in respect of the two Garnishee matters (that is Suit No. KDH/KAD/301/2023 MAGNOS PROJECT PRO LTD V HEALTH SUPPLIES MANAGING AGENCY & ORDS, and Suit No. KDH/KAD/302/2023 ECHUDA NIG LTD V RURAL WATER SUPPL Y AND SANITATION A GENCY, KADUNA STATE & ORS). That the said account number quoted in the two order Nisi is not an account that is operated by the Judgement Debtors rather it is an internal collection account set up by the Bank (5th Garnishee) to receive PAYE (Pay as you earn) tax remittances and other taxes and levie? and the name given to the account is just for identification purposes.

That the operation of the account is that when the PAYE remittances, taxes or levies are received into the account from legitimate businesses in compliance with the law, the Bank (5th Garnishee) uses its own money to transfer such amount of money received into the account to the Judgement Debtors operational account which is presently not domiciled with the (5th Garnishee). This account is not operated by the Judgement Debtors

as there is no signatory to it, same account being an internal collection account set up by the Bank (5th Garnishee) to receive PAYE remittances, the funds in it belong to the Bank (5th Garnishee ) because after the transferring her own money to the nominated account, the Bank recoups their money so transferred from this said account to regularize her books.

That if the order Nisi is made absolute, it may occasion miscarriage of justice as it will amount to the Bank (5th Garnishee) been held liable to pay the Judgment sum when the Bank (5th Garnishee) is not the Judgement Debtors in the matter before this Court and has no accounts operated or domiciled with the 5th Garnishee. That there is no signatory or BVN (Bank Verification Number) linked to the internal revenue collection account opened for convenience to receive revenue for ease of reconciliation.

JUDGMENT CREDITOR’S COUNTER AFFIDAVIT TO THE 5TH GARNISHEE’S AFFIDAVIT

The Judgment Creditor stated that the facts in the 5th Garnishee's affidavit are completely untrue as the judgment creditor's counsel herein filed a garnishee proceeding in suit no. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State and another suit with suit no. KDH/KAD/302/2023 Rural Water Supply Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State wherein the 5th garnishee disclosed that it maintains Kaduna State Government Account with sufficient funds to satisfy the judgment of the court.

ISSUE FOR THE DETERMINATION

The issue for the determination of this application is:

Given the various affidavits before the Court whether the Court can make the decree order nisi absolute.

COURT’S DECISION

I have carefully had a perusal of the various affidavits filed before this Court, to make the journey of the resolution of this application a smooth ride, I would prefer to treat the Garnishees and their affidavits together with the Counter-Affidavit of the Judgment Creditor individually as set out above.

The first garnishee on the roll is the 1st Garnishee, the Garnishee stated in the Affidavit to show cause filed on the 26th of September 2023 that the Judgment Debtors do not maintain any banking relationship with the 1st Garnishee.

The Judgment Creditor filed a counter-affidavit denying the deposition of the 1st Garnishee stating that the facts in the 1st Garnishee's affidavit is completely untrue as the judgment creditor's counsel herein commenced a garnishee proceeding in suit no. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State wherein the 1st Garnishee disclosed that it maintains Kaduna State Government Account with Account No. 1019190285.  But in the Further and Better Affidavit filed by the 1st Garnishee, the 1st Garnishee stated that that Account Number 1019190285 is a Non-Chequing Account and it is not capable of being attached in satisfaction of any Judgment debt as the funds therein are revenue generated through Pay Direct and regulated only by Kaduna State Internal Revenue Services before for disbursement and queries from tax-payers in Kaduna State. The Judgment Creditor further stated that the account with no 1019190285 in the name of "Kaduna state revenue account" as admitted by the 1st garnishee belongs to the 1st judgment debtor and does not need to be specifically garnisheed by indicating the account number before the 1st garnishee can disclose same. That the fact of the account being a non-chequing account not capable of being garnisheed as well as all assertions in paragraph 11 of the 1 garnishee's further and better affidavit to show cause is not supported by any documentary evidence or law.

First off, the only duty of a garnishee in garnishee proceedings is to satisfy the court why the funds in his possession belonging to the judgment debtor should not be garnished to pay the judgment debt. It is not the duty of a garnishee to play the role of advocate for the judgment debtor or to protect the debtor's money in his possession: see the case GTB PLC V. INNOSON NIG LTD (2017) 16 NWLR (PT. 1591) 181. In discharging its role, the Garnishee is not expected to be tetchy to the demand of the Judgment Creditor by shielding the Judgment Debtors. In C.B.N. V. INTERSTELLA COMM. LTD. (2018) 7 NWLR (Pt. 1618) 294 the Supreme Court held that:

Basically, the restrictive role and legal duty of a garnishee; in a judgment enforcement proceeding is to conscientiously and truthfully appear before the court in order to disclose the judgment debtor ' s state of account in its custody. So it is not the garnishee's business to play the role of an advocate for a judgment debtor by trying to shield and protect the money of the judgment debtor.

In this instant garnishee proceedings, the 1st Garnishee initially stated that none of the Judgment Debtors maintains an account with the 1st Garnishee, but the Judgment Creditor is able to outwit the antics of the 1st Garnishee where the Judgment Creditor stated that the facts in the 1st Garnishee's affidavit are completely untrue as the Judgment Creditor's counsel herein commenced a garnishee proceeding in suit no. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State wherein the 1st Garnishee disclosed that it maintains Kaduna State Government Account with Account No. 1019190285. The Judgment Creditor attached Exhibit I which is Affidavit to Show Cause and Bank Statement of the 1st Judgment Debtor filed by the 1st Garnishee in another case.

As expected, the 1st Garnishee came up with another gimmick that the order nisi did not specifically quote Account No. 1019190285 and that the account is a non-checking account that is not capable of being garnisheed, this was not stated in Exhibit I that was filed by the 1st Garnishee in suit no. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State.

I entertain no hesitation whatsoever to conclude that the 1st Garnishee is merely making a concerted effort to shield the Judgment Debtors for the failure of the 1st Garnishee to file before the Court the current status of Account No. 1019190285 domiciled with the 1st Garnishee. It is not the duty of a Garnishee to defend the judgment debt sought to be enforced against the judgment debtor. The duty of a Garnishee upon receipt of Garnishee order nisi is to file before the relevant court an affidavit to show cause why the judgment debtor's money in his custody should not be attached to satisfy the judgment debt. It then behoves a Garnishee to present the true state of affairs regarding the monies before the court. It is either there is no or insufficient fund in his custody or that the available fund is under lien or assigned to a third party in which case the court instead of proceeding to make an order for Garnishee absolute may order that any issue or question necessary for determining his liability be tried or determined as provided for in section 87 of the Sheriffs and Civil Process Act: see the case of HERITAGE BANK LTD. V. INTERLAGOS OIL LTD. (2020) 7 NWLR (Pt. 1723) 368.

However, the Garnishee stated that it has the right of first lien over account number 1019190285 relying on Exhibit CNA1. But the liability in Exhibit CNA1 is between Kaduna Skippers Power Limited and the 1st Garnishee, the Court cannot adjudge the 1st Garnishee to have the right of first lien over the account number 1019190285 with the name of the 1st Judgment Debtor. The snag in the position of the 1st Garnishee is that the 1st Judgment Debtor is distinct from Kaduna Skippers Power Limited; there is no nexus between the 1st Judgment Debtor and Kaduna Skippers Power Limited. Thus, consolidation of the account of the 1st Judgment Debtor and Kaduna Skippers Power Limited cannot arise here as the 1st Judgment Debtor is a public institution while Kaduna Skippers Power Limited is private limited liability company. In CO-OP. DEV. BANK PLC V. JOE GOLDAY CO. LTD. (2000) 14 NWLR (Pt. 688) 506 where the Court of Appeal held that:

The general principle of law as to whether a banker has the right to consolidate or combine customer's accounts is that unless precluded by agreement, express or implied from the course of business, a banker is entitled to combine current accounts kept by a customer in his own right; even though at different branches of the same bank, and to treat the balances, if any, as the only amount standing to the customer's credit. However, the customer has not the equivalent right, and cannot utilise a credit balance at one branch for the purpose of drawing cheques on another branch where he has no account or where his account is overdrawn.

(underlined mine for emphasis)

In this instant application, there are two distinct customers of the 1st Garnishee, Kaduna Skippers Power Limited is shown by Exhibit CNA1 to be indebted to the 1st Garnishee while the 1st Judgment Debtor is not.

Assuming, though there is no evidence to the effect, that the Judgment 1st Judgment Debtor owns, manages and operates Kaduna Skippers Power Limited, the 1st Garnishee cannot consolidate the 1st Judgment Debtor’s account number 1019190285 with Kaduna Skippers Power Limited to exercise the right of first set-off or lien over the money standing in the credit account of the 1st Judgment Debtor unless there is express agreement between the 1st Garnishee, Kaduna Skippers Power Limited and the 1st Judgment Debtor. In CO-OP. DEV. BANK PLC V. JOE GOLDAY CO. LTD. (Supra) the Court held that:

In British & French Bank Ltd. v. Opaleye (1962) 1 All NLR 26 at 28 or (1962) 1 SCNLR 60 at page 80 the Federal Supreme Court restated and followed the principle of law enunciated above. In that case, the respondent (Opaleye) had two accounts with the appellant bank, one in his own name and the other, a business account in the name of "Fekemo Brothers" of which he was the sole account holder. The private account was in credit under £2 (N4) and the business account was overdrawn to the extent of £500 (N1000), when a cheque for £350 (N700) was paid into the private account. The bank thereupon without notice to or the consent of the respondent utilised the credit of the private account to reduce the overdraft of the business account, and told the respondent that he could not draw on his private account. The respondent sued the appellant Bank in the Magistrate Court for damages and obtained judgment. The appellant appealed to the High Court which dismissed the appeal. Thereupon the appellant appealed to the Federal Supreme Court which also dismissed the appeal and held that where a banker opens two accounts with a customer, one in the customer's own name and the other in a business name, there is, in the absence of any express agreement to the contrary, an implied agreement that the accounts are to be kept distinct and separate. It also held that where by agreement, express or implied, a customer's several accounts with the banker are to be kept distinct and separate, the banker has no right to combine them or to transfer assets or liabilities from one account to another, without reasonable notice of the intention so to do, or without the assent of the customer.

(underlined mine for emphasis)

Again, the 1st Garnishee further stated that there equally exists earlier pending order nisi dated 5/6/2023 in Suit No. KDH/KADI284/2023 between Raybreeds Construction Limited V Government of Kaduna State & 4 Others V. United Bank for Africa Plc (as 1st Garnishee) at the Kaduna State High Court with a Judgment Sum of N149,734,793.89K and attached Exhibit CNA3, the truth is that Exhibit CNA3 cannot swayed this Court from making the order nisi absolute against the 1st Garnishee given the fact that the 1st Garnishee deliberately and bizarrely refused and neglected to disclose how much is standing in the current of the 1st Judgment Debtor in account number 1019190285. It behoves the 1st Garnishee to present the true state of affairs regarding the monies before the court.

Given the foregoing, I am satisfied that the 1st Garnishee has not shown sufficient and compelling reason why the Court should not make the order nisi absolute in favour of the Judgment Creditor to satisfy the debt of the Judgment Debtors.

In respect of the 3rd Garnishee, the 3rd Garnishee stated that the Order Nisi was duly served on the 3rd Garnishee; the 3rd Garnishee carried out a thorough search of its accounts and database which revealed that the Kaduna State Government is heavily indebted to the 3rd Garnishee at present to the tune of over N12, 354, 337, 169. 59 by virtue of CBN Bailout Intervention Loans obtained from the 3rd Garnishee. The Kaduna State Government maintains account Number 1228600665 in the books of the 3rd Garnishee and the 3rd Garnishee has a right of set-off over the credit balance in the said account in the letter and spirit of the Loan Agreement. Attached are Exhibit ZB1, ZB2 and ZB12.

Counsel for the 3rd Garnishee submitted that the 3rd Garnishee has a loan agreement with Judgment Debtors to the tune of N12 billion and the 3rd Garnishee has a right of set-off cited the case of FIDELITY BANK PLC VS. MR. FRANCIS OFUOWOLO & ANOR (2012) All FWLR (Pt. 644) at P. 151.

In his counter-submission, Counsel for the Judgment Creditor cited the case of ZENITH BANK PLC VS. OMENAKA & ANOR (2016) LPELR-40327 and submitted that the loan in Exhibit ZB2 the maturity of which is in 2035 and urged the Court to make the order nisi absolute.

It is very glaring beyond the aid for the crystal that the 1st Judgment Debtor through Exhibit ZB1 is indebted to the 3rd Garnishee to the tune of -N12, 354, 337, 169. 59 (Twelve Billion Three Hundred and Fifty-Four Million Three hundred and Thirty-Seven Thousand One Hundred Sixty-Nine Hundred Naira Fifty-Nine Kobo) as of the 26th of September 2023 when the Load Account Statement of the 1st Defendant was made. Again, the 3rd Garnishee vide Exhibit ZB1A is custody of the sum of N1, 079, 565, 845. 33 (One Billion Seventy-Nine Million Five Hundred Sixty-Five Thousand Eight Hundred and Forty-Five Naira Thirty-Three Kobo) which belongs to the 1st Judgment Debtor. The question that agitates the mind of this Court is whether the Court can make the order nisi absolute given Exhibit ZB1A which discloses sufficient balance in the account of the 1st Judgment Debtor domiciled with the 3rd Garnishee. I will not overlook the decision of the Court of Appeal in FIDELITY BANK PLC V. OKWUOWULU (2013) 6 NWLR (Pt. 1349) 197 cited by the 3rd Garnishee where the Court of Appeal held that:

It is my humble view that in the circumstances of this case, the very nature of garnishee proceedings entitles the garnishee to set off the indebtedness of the judgment debtor. This is because, the order nisi presupposes that the garnishee is indebted to the judgment debtor as at the time the order was made. If according to the records of the garnishee which is largely undisputed, there was an indebtedness on the part of the judgment debtor, then I do not see how the court can in equity and law, force a bank in essence to pay its own money to satisfy a judgment debt incurred by a customer. After all an order nisi only creates an equitable charge over the funds in favour of the judgment creditor. This is notwithstanding the fact that as at the time the order nisi was made, there had been no formal set off by the garnishee of the judgment debtor’s accounts.

It is my view that the right of set off can be exercised after receipt of the order nisi so long as the garnishee’s records show that as at the date of the order nisi, there were two accounts that could be consolidated belonging to the judgment debtor one with credit balance and another with debit balance. Thus sums in different accounts owned by a customer may be considered as the same for the purpose of settling liability due from the customer to the banker and vice versa. In my humble view, that is the only resolution which meets the justice of such a situation. In the circumstances, I have to hold that as at the date the order nisi was made, the 2nd respondent was indebted to the garnishee and therefore the garnishee could not have rendered up any assets of the debtor. Therefore the order absolute was erroneously made.

Curiously, the Judgment Creditor submitted that the Court can still make the order nisi absolute notwithstanding the debt in Exhibit ZB1 which is not yet matured, that the maturity year is 2035. Counsel cited ZENITH BANK PLC VS. OMENAKA & ANOR (2016) LPELR-40327.

Having meticulously read ZENITH BANK PLC’S case (supra) cited by Counsel for the Judgment Creditor, I have a reason with a strong conviction to presume that Counsel read the said authority halfway, and/or deliberately picked the part that is suitable to him to urge the Court to disregard the indebtedness of the Judgment Debtors to the 3rd Garnishee. Advisedly and ideally, it is not acceptable to read judicial authorities like a newspaper by reading the part that is suitable to the fancy of the reader without taking into account the conclusion of the Court. The authority under consideration is in all fours with the fact of this case. The Court of Appeal was to considered whether or not the trial court 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 and the Court held that:

My lords, having held that by Exhibit E, the 2nd Respondent/Judgment was shown to be heavily indebted to the Appellant in sum 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 contentions 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.

Given the holding of the Court of Appeal exhaustively quoted above, the 3rd Garnishee has the right of lien/set-off over the credit balance of the 1st Judgment Debtor domiciled with the 3rd Garnishee, and for this reason, I need not stress further but to hold that this Court will not make the order nisi absolute since the 3rd Garnishee intends to place lien or exercise the right of set-off over the available credit balance of the 1st Judgment Debtor’s account. Thus, the 3rd Garnishee is accordingly discharged. I so hold.

Finally, in respect of the 5th Garnishee, the 5th Garnishee stated that the Judgment Debtors do not maintain an account with the 5th Garnishee but the Judgment Creditor filed a counter-affidavit and stated that the facts in the 5th Garnishee's affidavit is completely untrue as the judgment creditor's counsel herein filed a garnishee proceeding in suit no. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State and another suit with suit no. KDH/KAD/302/2023 Rural Water Supply Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State wherein the 5th garnishee disclosed that it maintains Kaduna State Government Account with sufficient funds to satisfy the judgment of the court. Attached with the Counter-Affidavit is Exhibits MG1 and MG2 which are the Affidavits to show cause filed by the 5th Garnishee earlier in other suits. 

Respondent to the Counter-Affidavit of the Judgment, the 5th Garnishee stated that a particular account number was quoted in the order Nisi in respect of the two Garnishee matters (that is Suit No. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State and another suit with suit no. KDH/KAD/302/2023 Rural Water Supply Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State). The said account number quoted in the two order Nisi is not an account that is operated by the Judgement Debtors rather it is an internal collection account set up by the Bank (5th Garnishee) to receive PAYE (Pay as you earn) tax remittances and other taxes and levie? and the name given to the account is just for identification purposes. The operation of the account is that when the PAYE remittances, taxes or levies are received into the account from legitimate businesses in compliance with the law, the Bank (5th Garnishee) uses its own money to transfer such amount of money received into the account to the Judgement Debtors operational account which is presently not domiciled with the (5th Garnishee). This account is not operated by the Judgement Debtors.

It is very clear before this Court that the 5th Garnishee did not deny the fact that it had earlier filed affidavits to show cause in Suit No. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State and another suit with suit no. KDH/KAD/302/2023 Rural Water Supply Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State.

In Exhibit MG1 filed by the 5th Garnishee (the 14th Garnishee in that garnishee proceeding)and stated that:

4.     That I was informed by ABDULQUDUS AJIKOBI, a legal officer in the 14th Garnishee in our office on 03/07/2023 at about 02.00 pm and I verily believe same to be true as follows:

a.      That the 14th Garnishee was served with the Counter Affidavit of the Judgement Creditor.

b.     That after the receipt of the Judgement Creditor's Counter Affidavit A. O. Ibitoye Esq. Counsel to the 14th Garnishee reverted back to the bank to conduct further search on the Judgement Debtors.

c.      That the 14th Garnishee further conducted a search on their database and discovered that they only maintain a revenue account in the name of the 2nd Judgement Debtor.

d.     That the 14th Garnishee has sufficient funds to satisfy the Judgement Sum.

e.      That the 14th Garnishee do not maintain any account in the names of the 1st and 3rd Judgement Debtors.

(underlined mine emphasis)

In Exhibit MG2 filed by the 5th Garnishee (the 14th Garnishee in that garnishee proceeding) and stated that:

5.     That I was informed by Abdulqudus Ajikobi, a legal officer of Polaris Bank Plc the 14th Garnishee in our office on 2/06/2023 at about 6.00 pm and I verily believe same to be true as follows:

a.      That Polaris Bank Plc was served with the order nisi and other court's processes relating to this garnishee proceedings.

b.     That Polaris Bank Plc had conducted a search on its database and discovered that the (sic) there is an account in the names of the 2nd judgment debtor with sufficient funds to satisfy the judgment sum in its custody.

c.      That the 14th garnishee awaits the order absolute for compliance.

 

(underlined mine emphasis)

The question that arises here is whether the Court can rely on Exhibits MG1 and MG2 filed by the 5th Garnishee in Suit No. KDH/KAD/301/2023 Magnos Project Pro Ltd V. Health Supplies Management Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State and another suit with suit no. KDH/KAD/302/2023 Rural Water Supply Agency, Kaduna State, Kaduna State Government and Attorney General of Kaduna State to fact check the deposition of 5th Garnishee in this instant application. In B.C.C. LTD. V. ADO IBRAHIM & CO. LTD. (2003) 2NWLR (Pt.805) p.462 at Pp.483-484, the Supreme Court held that:

A party and indeed the court can rely in a current proceeding on an affidavit which the party had filed in an earlier judicial proceeding provided the party can show that:

a.      The earlier process is readily available for use in the present proceedings; and

b.     The deposition contained in the earlier processor affidavit is still relevant to the issues in contest in the current proceedings.

Thus, when an application or a suit has been struck out or dismissed, it does not mean that the process filed in the course of hearing the application or suit has become useless for all purposes. If the deposition in an affidavit or counter affidavit were true at the time it was deposed, they would remain true for the purpose of the suit in which they are sought to be relied on. In the instant case, the trial court was right when he relied on the exhibit attached to the respondent's affidavit in support of its motion dated 13th December 1995 in resolving the dispute as to whether or not a demand notice was served on the appellant by the respondent.

Affidavits filed in this proceeding by the 5th Garnishee are a pack of moonshine and a calculated attempt to shield the Judgment Debtors from their liability. Exhibits MG1 and MG2 are useful and relevant to this proceeding and the affidavits filed by the 5th Garnishee herein cannot repel and diminish Exhibits MG1 and MG2 earlier filed by the 5th Garnishee. I so hold.

Given the preceding analysis and findings, the 3rd Garnishee is hereby discharged, and the order nisi made on the 27th of July 2023 against the 3rd Garnishee is hereby set aside. In respect of the 1st and 5th Garnishees whose affidavits to show cause do not disclose the state of affairs of the account of the Judgment Debtors, the order nisi made on the 27th of July 2023 against the 1st and 5th Garnishees attaching the sum of Six Million Six Hundred and Forty-Nine Thousand, Eight Hundred and Thirty-Four Naira, Four Kobo (N6,649,834.04) only is hereby made absolute. It therefore follows that, where, as in the instant case, there is more than one garnishee in a garnishee proceeding, the specific amount payable by each garnishee should be stated: see the case of CBN V. MAGGPIY TRADING TFZE & ORS (2022) LPELR-57531(CA).

The 1st Garnishee is hereby ordered to pay the Judgment Creditor the sum of N3,000,000.00 (Three Million Naira) from Account No. 1019190285 which belongs to the 1st Judgment Debtor.

The 5th Garnishee is hereby ordered to pay the Judgment Creditor the sum of N3,649,834. 04 (Three Million Six Hundred and Forty-Nine Thousand Eight Hundred Naira) from Account No. 1019190285 which belongs to the 1st Judgment Debtor.

I order the garnishees to comply with the order of this Court within 14 days.

Ruling is entered accordingly.

 

 

HON. JUSTICE BASHAR A. ALKALI

PRESIDING JUDGE

KADUNA DIVISION

NATIONAL INDUSTRIAL COURT OF NIGERIA