IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA PRESIDING
ON THE 19TH DAY OF JULY, 2019
SUIT NO: NICN/MKD/15M/2019
OKOH ANDREW OGWUCHE JUDGMENT CREDITOR
1. ATTORNEY-GENERAL OF BENUE STATE
2. BENUE STATE LOCAL GOVERNMENT
3. BUREAU OF LOCAL GOVERNMENT & JUDGMENT DEBTORS/RESPONDENTS
4. BENUE STATE UNIVERSAL BASIC
1. ACCESS BANK PLC
2. UNITED BANK FOR AFRICA
3. STANBIC IBTC BANK PLC
4. ZENITH BANK PLC
5. UNION BANK OF NIGERIA PLC GARNISHEES
6. UNITY BANK
7. HERITAGE BANK PLC
8. STANDARD CHARTERED BANK PLC
9. POLARIS BANK PLC
10. GUARANTY TRUST BANK PLC
11. FIDELITY BANK PLC
12. FIRST CITY MONUMENT BANK PLC
13. STERLING BANK PLC
A.C. Attah for the judgment creditor
E.T. Nyityo(SSC)Benue State Ministry of Justice for the judgment debtor
T.O. Ajal for the 1st and 2nd garnishees
E.C. Onjefu for the 11th garnishee.
The instant ruling is in respect of the Affidavit to show cause filed by the 1st and 11th Garnishees herein. The said Affidavits to show cause were filed pursuant to the Garnishee Order Nisi issued on the 2nd of July 2019, attaching the judgment sum of N8,490,960.00 (Eight Million Four Hundred and Ninety Thousand, Nine Hundred and Sixty Naira)only.
The 3rd to 10th, 12th and 13th Garnishees were discharged on the 18th of July 2019 following the application of Counsel for the Judgment Creditor. In effect, the 1st, 2nd and 11th Garnishees, being Access Bank Plc, United Bank For Africa Plc and Fidelity Bank Plc, respectively are the remaining un-discharged garnishees.
The 1st Garnishee filed her affidavit to show cause on the 17/07/2019. Lizzy Onyeke, the litigation/Administrative Secretary in the law firm of F. M. Ebofuame-Nezan deposed to the said affidavit. Of the 6 – Paragraph Affidavit, Paragraphs 4(i-iii) are the most relevant and they read thus:
¡. That Account Number 0003732887 exists with the bank in the name of Benue State Government, and same has a credit balance of N4,895,893.09. The Account statement is attached as EXH UBA1.
¡¡. That ccount Numbers 0022430710, 0115836728, 2005593110 do not exist with the 1st Garnishee.
¡¡¡. That Account Number 0007617617 exists with the bank in the name of Benue State Government, and same has a credit balance of N100.00. The Account statement is attached as EXH 2.”
In like manner, the 11th Garnishee, Fidelity Bank PLC caused an affidavit to show cause to be filed on 17/07/2019. The 6-Paragraph affidavit is deposed to by Comfort Denis, the Secretary in the law firm of M. E. Onyeka& Co of counsel to the 11th Garnishee. The substance of her deposition is featured in paragraph 4 of the said affidavit. The deponent has averred concerning facts gathered from the Branch Manager of the 11th Garnishee as follows:
a. That the11th Garnishee was served with an Order Nisi issued by this Honourable Court in the above captioned suit.
b. That following the service of the said Garnishee Order Nisi, the 11th Garnishee immediately conducted a diligent bank wide search of her system to ascertain the claims of the Judgment Creditor.
c. That the said search reveals that the Judgment Debtors maintain Account No. 5030058730 with the 11th Garnishee.
d. That the said account is Joint State and Local Government Service Account.
e. That the said Account No. 5030058730 was attached in Suit No. NICN/45/2014, Aondohemba Agba Injo& 205 others vs. Government of Benue State & 3 others.
f. That the said case is now subject of an appeal in Appeal No. CA/MK/111/2016. Enclosed is a copy of the Notice of Appeal filed in respect thereof as Exhibit A.
g. That Benue State Government is also indebted to the 11th Garnishee Bank to the tune of N15,509,000,000.00 for which funds in the attached account are being used as security for the loan which empower the bank to exercise the right of lien over the attached funds. Copies of the offer and acceptance letter evidencing the said loan and the indebtedness are hereby attached and marked as Exhibits Band C.
h. That the 11th Garnishee has disclosed facts herein in compliance with the order of this Honourable Court."
On the part of the 2nd Garnishee however, as of 18/07/2019, it was yet to file the Affidavit to show cause. Learned Counsel for the 2nd Garnishee, Chime Chibuzo was instead heard praying the Court for a date to enable the filing of same within 14 days stipulated by law. That the 2nd Garnishee was served on the 9/7/2019 and he was briefed on the 17/7/2019.
Ordinarily, the onus is on the garnishee to show cause why the order nisi should not be made absolute, once the summons has issued against it. So the garnishee by its silence and refusal to appear and/or show cause becomes estopped from raising the issue of lack of funds in the judgment debtor's account subsequently.
In this case however, the 2nd Garnishee has made an application for adjournment to enable it file the Affidavit to show Cause. Counsel for the 2nd Garnishee prayed specifically for 14 days. The application for adjournment was premised on the fact that the 2nd garniahee was served on the 9/7/2019 according to counsel and that the counsel had just been briefed on the 17th of July 2019, being the penultimate day slated for Garnishees to show Cause.
Much as the grant or refusal of an application for an adjournment rests on exercise of discretion by the court, such discretion has to be exercised judicially and judiciously. An adjournment is not granted as a matter of course but a Court has to strike a medium in determining whether to grant an adjournment or not; taking into account the justice of the matter.
Without belaboring the issue, in light of the affidavit to show cause filed by the 11th Garnishee, I will rather discharge the 2nd Garnishee instead of adjourning the matter at the expense of justice. The garnishee order nisi made against the 2nd garnishee, United Bank for Africa Plc is hereby vacated.
Meanwhile, the Order Nisi is now made absolute against the 1st Garnishee, Access Bank PLC. The credit balance of N4,895,893.09 in Account Number 0003732887 which exists with the 1st Garnishee in the name of Benue State Government, is attached in partial fulfillment of the judgment debt of N8,490,960.00 (Eight Million Four Hundred and Ninety Thousand, Nine Hundred and Sixty Naira Only).
With regards to the 11th Garnishee, I take notice that the 11th garnishee on whom the order nisi was served invoked the statutory defences that are provided under Sections 87 and 88 of the Sheriffs and Civil Process Act. But Sections 87 and 88 of the Sheriff and Civil Process Act will not avail the 11th Garnishee if her case is not amply supported by documentary evidence, such that, the court if unable come to a decision concerning the Garnishee's liability or otherwise, may invoke the above sections.
In NIGERIA HOTELS LTD V. NZEKWE (1990) 5 NWLR (Pt. 149) 187 at 197, the affidavit to show cause, filed by the garnishee disputing liability, was amply supported by documentary evidence. See also Zenith Bank Plc. V. Kano & Ors. (2016) LPELR-40335 CA.
For the Court to invoke the provisions of Section 87 of the Sheriffs and Civil Process Act, the affidavit to show cause must contain not just an averment denying liability, but such denial of liability must be amply supported by documentary evidence. That is not the case here.
In the affidavit to show cause that was placed before the Court, the 11th Garnishee averred that account No.5030058730 belongs to JOINT STATE AND LOCAL GOVERNMENT SERVICE ACCOUNT. Besides that, the 11th Garnishee also averred that the account sought to be garnished is under lien and subject of Suit No. NICN/45/2014. A copy of the ruling in the said suit was annexed as Exhibit. The 11th Garnishee further averred that the said suit is now subject of Appeal No. CA/MK/111/2016. A copy of the Notice of Appeal was also annexed as Exhibit.
Whilst scrutinizing the Exhibits, I realized that there is nothing on the face of the exhibits furnished by the 11th Garnishee showing the state or status of the account No. 5030058730 or the monies in the said account. I find that Exhibit A is unpersuasive for what it aims to portend. I suppose that it is intended to prove the existence and/or subsistence of an appeal but it bears no date of filing, neither any stamp that speaks as to the authenticity thereof. I am therefore minded to disregard it. Exhibits B and C are equally not helpful as they do not reflect any particular account.
The 11TH Garnishee has however by their averments before me admitted to running the account No. 5030058730 as a Joint State and Local Government Service Account.
It has become necessary to remark that rather than complying with the order nisi the 11th garnishee chose to become evasive and has assumed the role of a defender of the judgment debtors. This is evident by the sparing facts in the affidavit to show cause.
Clearly the 11th garnishee is window shopping for facts to show cause why the garnishee order nisi should be vacated and not made absolute against it. I find such conduct most reprehensible.
It is in the light of the foregoing that I hold that the order nisi issued against the 11th Garnishee, Fidelity Bank Plc is effectively made absolute against it. The 11th Garnishee shall pay the judgment debt of N8,490,960.00 (Eight Million Four Hundred and Ninety Thousand, Nine Hundred and Sixty Naira Only) with the Judgment Debtors’ funds in Account Number 5030058730, or any other account held by it due to the Judgment Debtors less the sum of N4,895,893.09 which was ordered by the court to be paid by the 1st Garnishee.
That cheques shall be raised by the 1st and 11th garnishees in respect of the judgment sum in the name of Attah A. Charles & Co.
Ruling is entered accordingly and I make no order as to cost.
HON. JUSTICE S. H. DANJIDDA