ZENITH BANK PLC .V. CHIEF SUNDAY EDEH &ANOR

AREAS OF LAW:

Action, Appeal, Garnishee Proceedings, Law Of Evidence, Judgment And Orders, Practice And Procedure

SUMMARY OF FACTS

The 1^st Respondent sued the 2^nd Respondent (judgment debtor) at the Federal High Court, and got judgment in his favour in the sum of N5, 000,000.00. As a step in enforcing the judgment, he commenced garnishee proceedings against the Appellant among other garnishees, the Appellant being the 4^th garnishee. The court granted the decree Nisi after which all garnishees cited filed affidavit to show cause with attached Exhibits and balances in the said account. The lower court upon a considered ruling made the garnishee absolute. Dissatisfied with the ruling of the lower court, the Appellant has filed a notice of appeal to this court on the grounds that the lower court was wrong in making the decree absolute.

HELD

Appeal Dismissed

ISSUES FOR DETERMINATION

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?

Whether the Documents exhibits A1 and B2 attached to the 1^st Respondent (Judgment Creditor) Counter – Affidavit dated 11^th 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.

RATIONES

GARNISHEE – ROLE OF A GARNISHEE IN A GARNISHEE PROCEEDINGS

“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 Plc 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 ” per ABUBAKAR, J.C.A (PP. 28-32, PARAS. D-A)” any credible evidence to show that the interim order had been discharged.

PER A.O.OBASEKI-ADEJUMO, J.C.A

GARNISHEE PROCEEDINGS- CIRCUMSTANCES THAT WILL WARRANT THE COURT TO ORDER THE GARNISHEE TO SETTLE THE JUDGMENT DEBT

“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;

“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 A.O.OBASEKI-ADEJUMO, J.C.A

PUBLIC DOCUMENT – WHETHER A CERTIFIED TRUE COPY OF A PUBLIC DOCUMENT IS PRESUMED GENUINE UNTIL THE CONTRARY IS PROVED

“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 A.O.OBASEKI-ADEJUMO, J.C.A

STATUTE REFERRED TO:

Evidence Act 2011