IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA
IN THE YOLA JUDICIAL DIVISION
HOLDEN AT YOLA
BEFORE: HNOURABLE MR. JUSTICE SANUSI KADO
24TH DAY OF JULY 2020 SUIT NO. NO. NICN/YL/02M/2019
Shehu Mudi & 656 Ors. …………………………………. Judgment Creditors/Applicants
Adamawa State Government & 3 Ors.…………. Judgment Debtors/Respondents
Fidelity Bank Plc
Zenith Bank Plc Garnishees.
1. This garnishee proceeding was commenced on 21/2/2020 va motion Exparte by the Judgment Creditors/Applicants against the garnishees.The motion ex-parte was heard on 24/2/2020 and an order nisi was granted by the court attaching the judgment sum involved. Thereafter, the garnishees were order to file affidavit to show cause why the order nisi made on 24/2/2020, shall not be made absolute.
2. The Garnishees in compliance with the order nisi filed affidavits to show cause. The first Garnishee filed its affidavit on 27/2/2020, wherein in paragraph3 b of the affidavit, it averred that account Number 9020003164 maintained by the judgment Debtor has a balance in the sum of N413,528.31 Four Hundred and Thirteen Thousand Five Hundred and Twenty Eight Naira Thirty One Kobo).
3. The 2nd Garnishee filed its affidavit on 16/3/2020, wherein the deponent one Caleb Myebangara, Regional Manager of the 2nd Garnishee averred in paragraph 6 that account No. 1011247747 has closing balance in the sum of N297,192,931.05 (Two Hundred and ninety Seven Million, One Hundred and Ninety Two Thousand Nine Hundred and Thirty One Naira Five Kobo). The statement of account evidencing the balance in the account was attached to the affidavit as exhibit Z. The deponent further averred that the Judgment Debtor Adamawa state Government is heavily indebted to the 2nd Garnishee at present to the tune of N19.3 Billion as it has four credit facilities from the Garnishee. Offer letters of credit facilities accepted by the Judgment Debtor was attached as exhibit Z1-Z4. That the accounts of the Judgment Debtorwith the2nd Garnishee are all in debit. The witness also averred that there are no sufficient funds to attach in satisfaction of the judgment debt in the books of the 2nd Garnishee.
4. On 16/7/2020, when the Garnishee proceeding came up before the court for hearing. E. O. Odo, Esq; counsel for the Judgment Creditors moved the court to make the order nisi absolute in respect of the averment in paragraph 3 b of the affidavit of the first Garnishee to the tune of N413,528.31. Counsel also urged the Court to in view of paragraph 6 c & d, of the 2nd Garnishee wherein it was stated that the closing balance in the Judgment Debtor’s account was given as the sum of N297,192,931.05. Counsel contended that the credit balance in the account is sufficient to satisfy the judgment sum. Counsel urged the court to make the order nisi absolute.
5. M. E. Goro, Esq; counsel for the 2nd Garnishee, in reply submitted that the deposition in the affidavit to show cause and exhibits attached therein have clearly shown that the Judgment Debtor is heavily indebted to the 2nd Garnishee. The 2nd Garnishee is entitled to set off. In the circumstances there are no sufficient funds to satisfy the judgment sum.
6. I have carefully considered the affidavits filed by the Garnishees to show cause why the order nisi should not be made absolute. In the affidavit of the 1st Garnishee, it was deposed that the amount standing to the credit of the Judgment Debtor in account No. 9020003164 was stated to be the sum of N413,528.31 (Four Hundred and Thirteen Thousand Five Hundred and Twenty Eight Naira Thirty One Kobo). The 1st Garnishee did not give any reason why the money in the account of the Judgment Debtor with it should not be utilize to pay the Judgment Creditors. In view of the absence of any impediment, I hereby made order nisi absolute in respect of the sum of N413,528.31 (Four Hundred and Thirteen Thousand Five Hundred and Twenty Eight Naira Thirty One Kobo), standing to the credit of the Judgment Debtor with the 1st Garnishee. The said sum in the account of the Judgment Debtor with the 1st Garnishee shall immediately be paid to the Judgment Creditors as part payment of the judgment sum.
7. The 2nd Garnishee has also disclosed that there is in the account of the Judgment Debtor total sum of N N297,192,931.05 (Two Hundred and ninety Seven Million, One Hundred and Ninety Two Thousand Nine Hundred and Thirty One Naira Five Kobo). However, the 2nd Garnishee by the affidavit filed before the court to show cause why the order nisi should not be made absolute, has disclosed that the Judgment Debtor is heavily indebted to the 2nd Garnishee and the amount standing to the credit of the Judgment Debtor will not be enough defray or satisfy the total indebtedness. The 2nd Garnishee is therefore claiming being entitled to set off. In support of the claim for set-off, the counsel for the 2nd Garnishee vide letter dated 16th day of July 2020 forwarded citation of the the decision in the case of Barardos Ventures Ltd V First Bank Plc (2018) 4 NWLR (Pt.1609) 241, Rations 15, 16, 17, 18 19 and 20. In reaction counsel for the Judgment Creditors sent in a letter dated 11th July 2020, wherein counsel contended that the case being relied upon by counsel for the 2nd Garnishee is distinguishable from the case at hand. Counsel posited that the authority is only applicable where a right of set off is established and in the instant case no right of set off is established as no any set off forms are before the court to enable this court concludes that a right of set off exists.
8. It is to be noted that in the case at hand the Judgment Debtor by taking facilities from the 2nd Garnnishee has become debtor to the 2nd Garnishee and the 2nd Garnishee becomes creditor to the Judgement Debtor, this has changed the equation. The 2nd Garnishee having acquired the status of creditor to the Judgment Debtor cannot be proceeded against as Garnishee. See Allied Bank of Nigeria V Akubuze (1997) 6 NWLR (Pt.509) 374; Yesufu V ACB (1981) 1 SC 74; Yusuf v Cooperative Bank Ltd (1994) 7 NWLR (Pt.359) 676.
9. The right of set-off is usually available to a banker when it assumes the position of creditor in a banker-customer relationship. In this case, the 2nd Garnishee having assume the position of creditor to the Judgment Debtor reserved right of set-off. Therefore, in the case at hand the 2nd Garnishee is not a proper Garnishee against whom the Garnishee order (nisi or absolute) ought to be made. (P. 274, paras. B-C)
10. It is the law that issuance and service of order nisi on the Garnishee does not automatically entitle the Judgment Creditors/Applicants to the sum of money in the judgment Debtor’s account, if the Garnishee is able to show why the money in the judgment Debtor’s account should not garnished to pay the judgment debt. Some of the recognized excuses include where the account is in debit or heavily indebted. The account could also be joint account whereas the other signatory to the account is a stranger to and unaware of the matter that led to the judgment debt. There could also be a set off or lien against the account.
11. The 2nd Garnishee by the affidavit evidence is contending that it is entitled to the defence of lien or set off. In law a lien is a legal right reserved in a person to retain another person’s property which is rightfully (and continuously) in his possession until the present and accrued claims of the person in possession are satisfied. See Afronte Nigeria Ltd V MIA & Sons Ltd (2000) 15 NWLR (Pt.692) 6730; (2000) 12 SC (Ptii) 1. For set-off Black’s Law Dictionary (9th Edition), West Publishing Co. page 1496 define a set-off as a counter-demand generally of a liquidated debt growing out of an independent transaction for which an action might be maintained in law.
12. In the case at hand the 2ndGarnishee plead the defence of lien and/or set off in showing cause why the money standing to the credit of the judgment Debtor should not be paid to the judgment Creditors in this suit. By this plea the 2nd Garnishee is saying that though it is in possession of money belonging the judgment Debtor, the money cannot be paid over to the judgment creditors in this action, because the judgment debtor is also indebted to the 2nd Garnishee.
13. There is a plethora of authorities where it was settled that a Garnishee is entitled to set-off any debt due to him from the judgment debtor. The right to lien and set off was exercised for instance in the case of Obafem Awolowo University V Olanihun (1999) 8 NWLR (Pt.464) 123, where it was held that the Garnishee is entitled to use the defence of set-off to defeat any action brought to recover the sum of N1.8 Million (property of the Judgment Debtor) either by the judgment Debtor itself or anyone claiming through it. See also the cases of Fidelity Bank Plc V Francis Okwuowuu (2002) LPELR-8497(CA); First Inland Bank Plc V Glory Effiong (2010) 16 NWLR (Pt.1218) 199.
14. From the principles laid down in the above decided case laws, it can be said that set-off or lien is a legitimate defence available to the 2nd Garnishee in this suit. This is because the right to set-off is usually available to a banker when it assumes the position of creditor in a banker-customer relationship as in this case. Therefore, the 2nd Garnishee in the circumstances of this case reserves the right of set-off. I am satisfied from the affidavit evidence and exhibits, Z, Z1-Z4, that the 2nd Garnishee has shown that the Judgment Debtor is indebted to it and if the indebtedness is deducted from the money in the account of the Judgment Debtor, there will be no funds to satisfy the indebtedness. In the circumstance the 2nd Garnishe is hereby discharged on account of defence of set-off. While order nisi is hereby made absolute in respect of the money standing to the Credit of the Judgment Debtor with the 1st Garnishee.
15. This is the decision of the court and same is hereby entered accordingly.
B. R. Estan, for the Judgment Creditors/Applicants, appearing with P. A. Udo, Esq; J. Williams, Esq; N. A. Mohammed, Esq; and N. N. Waya, Esq;
U. J. Koliyiga, Esq; Senior State Counsel Grade 1, Adamawa State Ministry of Justice For the Judgment Debtors.