IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE MAKURDI JUDICIAL DIVISION
HOLDEN AT MAKURDI
BEFORE HIS LORDSHIP, HON. JUSTICE S.H. DANJIDDA
ON THE 4TH DAY OF JULY, 2019
SUIT NO: NICN/MKD/06M/2019
MR. ONYILO O. THADDEUS
(Suing for and on behalf of the Estate
of Michael Ocheme Onyilo (deceased) JUDGMENT CREDITOR
OF BENUE STATE
2. BENUE STATE GOVERNMENT JUDGEMENT DEBTORS
3. BENUE STATE
LOCAL GOVERNMENT PENSION BOARD
4. BUREAU OF LOCAL GOVT & CHIEFTAINCY
1. ACCESS BANK PLC
2. DIAMOND BANK PLC
3. ECO BANK PLC
4. GUARANTY TRUST BANK PLC GARNISHEES
5. POLARIS BANK PLC
6. UNITED BANK FOR AFRICA PLC
7. ZENITH BANK PLC
A.C. Attah ESQ. for the Judgment Ceditor
Chima Chibuzo ESQ. for the 6th Garnishee
By a Motion exparte dated and filed on 06/05/2019, the Judgment Creditor herein sought and obtained garnishee order nisi against the garnishees. The matter was thereafter adjourned to the 20th of June 2019 for the Garnishees to show cause. On the resumed date of 20/06/2019, this Honourable having considered the Affidavits to show cause filed by all the garnishees, discharged the 1st, 2nd, 3rd, 4th, 5th and 7th garnishees whilst the matter was further adjourned for ruling on the Affidavit to show cause filed by the 6th Garnishee, United Bank for Africa Plc.
The instant ruling therefore is upon the Affidavits to Show Cause filed by the 6th garnishee. The 6th Garnishee’s 6 – Paragraph Affidavit to show cause was deposed to by IFENKWE PEACE NNKECHI, the Litigation/Administrative Secretary in the Law Firm of F. M. Ebofuame-Nezan & Co. In paragraph 4 thereof which is the most relevant, the deponent averred thus:
“4. That I am informed by Ifeoma Odibe, Corporate Counsel with the 6th Garnishee’s Legal Department and I verily believe her that upon the service of the Garnishee Order Nisi on the 6th Garnishee, she conducted a search of her database and discovered as follows:
¡. That Account Number 9005200035 as quoted on the Order Nisi is a UBA internal MC Account and does not belong to the Judgment debtors.
¡¡. That the quoted Account Number 9005200035 is a UBA designated Account which the Branch uses to raise Bank drafts. The Account Statement is attached as Exhibit UBA1.
¡¡¡. That Account Number 1007223870 is in debit, as the State Government is indebted to the bank to the tune of –N5,117,553,282.84. The Account Statement is attached as Exhibit UBA 2.
¡v. That Account Number 1001568662 has a credit balance of N239, 171.03. the Account Statement is attached as Exhibit UBA 3.
v. That Account Number 1004975659 has a credit balance of N109, 575.00. The Account Statement is attached as Exhibit UBA 4.
v. That Account Number 1004366682 has a credit balance of N6, 010,441.16. The Account Statement is attached as Exhibit UBA 5.
v¡. That Account Number 1019168101 has a credit balance of N140, 506,586.40. The Account Statement is attached as Exhibit UBA 6.
v¡¡. That despite the display of availability of funds in Exhibits UBA 2, UBA3, UBA4, UBA5 and UBA6, same are not available to be attached as they have been attached by the bank to cover the indebtedness in Exhibit UBA1.
v¡¡¡. That the Account Numbers 100403818 and 0055832614 as quoted on the order nisi are invalid/incorrect as they do not exist with the bank.
¡x. That there are no more funds left to be attached for the settlement of the judgment debt in this present Garnishee Proceedings."
In the written address filed in support of the 6th Garnishee’s Affidavit to show cause, Learned Counsel for the 6th Garnishee while relying on the series of Exhibits placed before this court, urged that the 6th Garnishee be discharged.
Learned Counsel for the Judgment creditor, A. C. Attah, was heard on 20/062019 to oppose the 6th Garnishee’s application for the discharge. The pretext of the objection being that the 6th garnishee did not bring any documentary evidence before this court to show that the funds disclosed in Exhibit UBA 6 had been placed as security for the indebtedness indicated by Exhibit UBA 2. Counsel argued that since the amount of N140,506,586.40(One Hundred and Forty Million, Five Hundred and Six Thousand, Five Hundred and Eighty Six Naira. Forty kobo) only, evidenced in Exhibit UBA 6 is sufficient to satisfy the Judgment sum and reference to Exhibit UBA 2 does not have any correlation with Exhibit UBA 6, then the court should make the Order Nisi absolute in respect of account number 1019168101.
It should be noted that the judgment debt in issue derives from judgment in suit No. NICN/MKD/30/2018 delivered on 5th April, 2019 by this Honourable Court where upon the sum of N12,278,414.00(Twelve Million, Two Hundred and Seventy Eight Thousand, Four Hundred and Fourteen Naira)only, was awarded as the judgment sum.
having paid serious attention to the Affidavit to show cause filed by the 6th Garnishee as well as the attached Exhibits. Exhibit UBA 1, indeed shows that account number 9005200035 as quoted is a UBA designated Account which the branch uses to raise Bank Drafts. On the face of it, Exhibit UBA 1 bears “9005200035 NGN 0052 MC/DRAFT OUTSTANDING ACCOUNT.
For its part, Exhibit UBA 2 which is admittedly an account belonging to the Benue State Government shows that it is indebted to the tune of N5,117,553,282.84(Five Billion, One Hundred and Seventeen Million, Five Hundred and Fifty Three Thousand, Two Hundred and Eighty Naira. Eghty Four Kobo) only, hence, in no shape to be garnisheed.
While Exhibit UBA 3, Exhibit UBA 4 and Exhibit UBA 5 are in respect of Account Numbers: 1015568662, 1004975659 and 1004366682 respectively. These accounts individually as well as collectively do not have sufficient credit to satisfy the Judgment sum. Moreover, the 6th Garnishee is of the opinion that it has a right of lien over the funds in them on account of the existing indebtedness evidenced in Exhibit UBA 2. Similarly, that Account Number 1019168101 which is in sufficient credit to the tune of N140,506,586.40,(One Hundred and Forty Million, Five Hundred and Six Thousand, Five Hundred and Eighty Six Naira. Forty kobo)only, enough to satisfy the judgment sum as reflected in Exhibit UBA 6 is attached to cover the indebtedness shown in Exhibit UBA 2. This point, for whatever it is worth shall be considered anon.
Let me say first that it is fairly settled in law that the onus placed on a Garnishee would only be discharged where it successfully establishes that the account or accounts covered by the Garnishee Order nisi do not exist in its system or if it exists, it is in debt and not in credit or that it has a right of set off or lien which are due and effective against the customer. SEE: UBN PLC v. BONEY MARCUS INDUSTRIES LTD. (2005) ALL FWLR (Pt. 278) 1037 @ PP. 1046-1047. FIDELITY BANK PLC. v. OKWUOWULU (2012) LPELR-8497(CA); CITIZENS INTERNATIONAL BANK v. SCOA (NIG) LTD (2006) 18 NWLR (Pt. 1011) 334; HERITAGE BANK LTD v. INTERLAGOS OIL LTD & ANOR (2018) LPELR-44801(CA)
However, to avoid any misapprehension on the part of the 6th Garnishee, the point must be made abundantly clear that it is only the Court that can grant or lift a lien placed on a debtor's account. The 6th Garnishee’s assertion remains materially and suspiciously vague on all relevant pointers. This court is not convinced by the assertion that the available funds in its custody are security for the debt owed it. Such positive assertion requires proof that bears more weight than mere say so. I therefore agree with Learned Counsel for the Judgment Creditor that there is nothing before me that speaks with authority to buttress that assertion by the 6th Garnishee.
What I find from a community and careful perusal of Exhibits UBA 2 and Exhibit UBA 6 is that Account Number 1019168101 (tagged BNSG SALARY ACCOUNT) which is evidenced by Exhibit UBA 6 was rather being credited from Account Number 1007223870 (tagged BNSG FAAC ACCOUNT) as reflected in Exhibit UBA 2, even while the account was already in debt. Notably, on 28/05/2019, N1, 300,939,708.77(One Billion, Three Hundred Million, Nine Hundred and Thirty Nine Thousand, Seven Hundred and Eight Naira. Seventy seven kobo) only, was moved from the BNSG FAAC ACCOUNT to the BNSG SALARY ACCOUNT. Also, N602, 025,907.32(Six Hundred and Two Million, Twenty Five Thousand Naira, Nine Hundred and Seven Naira. Thirty Two kobo) only, was transferred on the same date from Account Number 1007223870 to Account Number 1019168101.
All this goes to establish that these accounts are operational and continually being transacted by the Government of Benue State. Clearly, there continues to be free inflow and outflow of monies in both accounts. Of particular interest is Account Number 1019168101 (tagged BNSG SALARY ACCOUNT) which is evidenced by Exhibit UBA 6. The chain of unfettered transactions which Exhibit UBA 6 shows seem to defeat the argument adduced by the 6th Garnishee that the said Account is encumbered.
In all, I find the assertions of the 6th Garnishee as to why the garnishee order nisi should not be made absolute unpersuasive. I am satisfied that there are enough funds in the judgment debtors' accounts with the 6th garnishee. Consequently, Garnishee Order Absolute is made is respect of Account Number 1019168101 (tagged BNSG SALARY ACCOUNT). The 6th Garnishee, United Bank for Africa Plc. shall pay to the Judgment creditor, the sum of N12,278,414.00(Twelve Million, Two Hundred and Seventy Eight Thousand, Four Hundred and Fourteen Naira)only, being the judgment sum.
Ruling is entered accordingly. I make no order as to cost.
HON. JUSTICE S. H. DANJIDDA