GTB V. Tafida & Anor

GTB V. TAFIDA & ANOR (2021) LPELR-56131(CA)

GUARANTY TRUST BANK PLC v. ENGR. MUSA BAMANGA TAFIDA & ANOR

(2021) LPELR-56131(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, the 8th day of October, 2021

Suit No: CA/K/281/2017

Before Their Lordship

FATIMA OMORO AKINBAMI Justice of the Court Of Appeal

ABUBAKAR MAHMUD TALBA Justice of the Court Of Appeal

PETER OYINKENIMIEMI AFFEN Justice of the Court Of Appeal

Between

GUARANTY TRUST BANK PLC –APPELLANT(S)

And

ENGR. MUSA BAMANGA TAFIDA
ARCH. DEWU MOHAMMED. – RESPONDENTS

SUMMARY OF JUDGMENT

INTRODUCTION:

This appeal borders on garnishee proceedings.

FACTS:

This appeal stemmed from a garnishee order absolute granted by the High Court of Kaduna State, Coram: David Wyoms, J.

The 1st Respondent, having obtained judgment in the sum of N35,000,000.00 (Thirty Five Million Naira) against the 2nd Respondent, commenced garnishee proceedings against nineteen (19) commercial banks, including the Appellant as 13th Garnishee. In obedience to the order nisi issued by the trial Court, the nineteen banks filed separate affidavits to show cause and in the end, all but two of the banks were discharged on the ground that the judgment debtor held no account with them.

The Garnishee order nisi was made absolute against the 1st Garnishee [Diamond Bank Plc] in the sum of N34,998.02 (Thirty Four Thousand Nine Hundred and Ninety Eight Naira Two Kobo) standing to the credit of the judgment debtor’s account with it. In respect of the Appellant, the Court held that appellant failed to place before the Court, sufficient reason why the Court should not make an Order Absolute. The garnishee order nisi was thus made absolute against the Appellant, in the sum of N35m or so much thereof as will satisfy the judgment debt.

Dissatisfied, Appellant appealed to the Court of Appeal.

ISSUES:

The issues for determination were:

“1. Whether the lower Court rightly decreed an order absolute against the appellant.

Whether the lower Court rightly held that the Bank Verification Number (BVN) of a customer settles the issue of the identity of such bank customer?”

DECISION/HELD:

In conclusion, the Court of Appeal allowed the appeal, and set aside the order absolute made by the trial Court.

iii

RATIO DECIDENDI

PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Whether garnishee proceedings is a separate and distinct proceeding

“Garnishee proceedings are separate and distinct from the original action that generated the judgment sought to be enforced. See HERITAGE BANK LTD v. INTERLAGOS OIL LTD (2018) LPELR 44801 (CA) and POLARIS BANK v. GUMAU & ORS (2019) LPELR-47066(CA).”

Per PETER OYINKENMIEMI AFFEN ,JCA (P. 10, paras. A-C)

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PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Nature and procedure of garnishee proceedings

“The governing principles as well as the procedure for initiating and resisting garnishee proceedings are stipulated in Ss. 83 – 91 of the Sheriffs and Civil Process Act, Cap 407, LFN 2004 (“SCPA”), Order VIII of the Judgment Enforcement Rules and the civil procedure rules of some first instance Courts; and there is an impressive array of decisions from the stable of the Supreme Court and this Court on this almost seamless process of enforcing money judgments. In simple terms, garnishee proceedings [or garnishment] is a judicial proceeding in which a judgment creditor entreats the Court to order a third party who is indebted to the judgement debtor to turn over to the creditor any of the debtor’s property (such as wages or bank accounts) held by that third party. It affords a harsh and extraordinary remedy, if not a somewhat anomalous statutory invention sui generis, with no affinity to any action known to the common law. Garnishment is a method of seizure but not a ‘levy’ in the usual acceptation of that term; a proceeding by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hands of his debtor. See Black’s Law Dictionary (8th ed.), pp. 702 -703. The amount at the credit of a judgment debtor in his bank account is property of the judgment debtor consisting of a debt and the bank is “the person indebted” under S. 83(1) SCPA; and once made, the order nisi binds the debt in the hands of the garnishee, that is, creates a charge in favour of the judgment creditor. See HARRY FLIONE v. PHILIP A. OLADIPO (IN RE BARCLAY’S BANK GARNISHEES) (1934) VOL X1 NLR 168. In GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC) 1 at 23-25, his Lordship, Okoro JSC stated thus: “A garnishee proceedings is usually commenced by an ex-parte application made to the Court having jurisdiction to hear the matter by the Judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order NISI. Simply, NISI is a Norman – French word which means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is sufficient reason given by the party on whom the order is directed why the payment ordered should not be made. Such reasons could be that he does not hold any money belonging to the judgment debtor or that such money belonging to the judgment debtor in his possession is a subject of litigation or has been assigned to a third party or any other legal and reasonable excuse. If no sufficient reason is given, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor. The Court then becomes functus officio as far as that matter is concerned in that the Judge who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd & Ors (2005) 13 NWLR (pt. 943) 654, Choice Investments Ltd v. Jeromnimon (Midland Bank Ltd. Garnishee) (1981) 1 All ER 225 at 328, Guaranty Trust Bank Plc v. Innoson Nig. Ltd (2017) LPELR-42368 (SC).”

Per PETER OYINKENMIEMI AFFEN ,JCA (Pp. 10-13, paras. C-B)

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PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Effect of failure of a garnishee to appear in Court to dispute/pay the debt owed

“A conspectus of decided cases on garnishee proceedings reveal that little or no issues arise where a garnishee does not appear in Court to show cause or otherwise fails to make a return upon being served with a garnishee order nisi, in which case the Court is duty bound to proceed to make absolute the garnishee order nisi without further assurance. That is what S. 86 SCPA as well as the Supreme Court decision in UBN v. BONEY MARCUS INDUSTRIES LTD [2005] 13 NWLR (PT. 943) 656 at 666 enjoin the Court to do. Thus, a third party who fails to appear in Court or otherwise ignores a garnishee order nisi duly served on him does so at his own peril.”

Per PETER OYINKENMIEMI AFFEN ,JCA (P. 13, paras. C-F)

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PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Step or procedure to be adopted by a trial Court where the garnishee appears and disputes his liability for the judgment debt

“Not infrequently however, issues arise where a garnishee appears in Court in obedience to the garnishee order nisi and files an affidavit to show cause. The course open to a Court in such a situation is provided for in S. 87 SCPA: “If the garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined or may refer the matter to a referee”. But the determination of whether or not a garnishee has actually disputed his liability is not always a walk in the park, and the discretion of first instance Courts has been disturbed on appeal in not a few cases on the basis that S. 87 SCPA “which stipulates what procedure to be adopted by the trial Court, where liability for the Judgment debt is DISPUTED by the Garnishee, indeed limits the exercise of the Court’s discretion to either, to call for trial of the case, or to refer the matter to a referee. No other procedure is implied in the provisions of that statute”. See MAINSTREET BANK LTD v. U.B.A. (2014) LPELR-24119(CA) 1 at 26-28. The cases of POLARIS BANK v. GUMAU & ORS (2019) LPELR-47066(CA)1 at 34-37, STERLING BANK v. GUMAU & ORS (2019) LPELR-47067(CA) 1 at 19-35 and FIDELITY BANK PLC v. GUMAU & ANOR (2019) LPELR-47068(CA) are a trilogy of appeals in which his Lordship, Abiru JCA queried rhetorically: “When is there said to be a dispute of liability by a garnishee and which requires further enquiry under S. 87 of the Sheriffs and Civil process Act? before proceeding to expound the legal position with characteristic clarity as follows: “Three scenarios have emerged from the interpretation of the Courts as to what a trial Court can do where a garnishee appears in obedience to a garnishee order nisi and disputes liability by filing an affidavit to show cause. The first is that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee and the affidavit to show cause of the garnishee denying liability fails to condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, the trial Court can proceed to make an order of garnishee absolute, notwithstanding the affidavit to show cause – Skye Bank Plc v. Colombara & Anor (2014) LPELR 22641(CA), Governor of Imo State v. Ogoh (2015) LPELR 25949(CA), Access Bank Plc v. Adewusi (2017) LPELR 43495(CA), First Bank of Nigeria Plc v. Okon (2017) LPELR 43530(CA), Heritage Bank Ltd v. Interlagos Oil Ltd (2018) LPELR 44801(CA), First Bank of Nigeria Plc v. Yegwa (2018) LPELR 45997(CA). The second scenario is that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee and the affidavit to show cause of the garnishee denying liability condescends on particulars and conflict with the facts deposed by the judgment creditor, the trial Court cannot proceed to make a garnishee order absolute and must constitute the question of the liability of the garnishee as an issue to be tried or determined in any manner in which any issue in a proceeding is tried or determined, or he may refer the matter to a referee – Central Bank of Nigeria v. Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, Mainstreet Bank Ltd v. United Bank for Africa Plc (2014) LPELR 24118(CA), Eco Bank (Nig) Plc v. Mbanefo & Bros Ltd (2014) LPELR 41106(CA), Total Upstream Nigeria Ltd v. A.I.C. Limited (2015) LPELR 25388(CA).Order 8 Rule 8(2) of the Judgment Enforcement Procedure Rules provides that in this situation, the Court shall set the issue or question down for hearing and shall direct which of the persons interested shall be plaintiff and which shall be defendant and the parties shall be at liberty to lead evidence -Central Bank of Nigeria v. Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA). The third scenario is that where a garnishee order nisi is granted on the basis of a general statement of a judgment creditor that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars showing that it has no such funds, and the judgment creditor fails to depose to a further affidavit contesting the assertions of the garnishee, the trial Court may discharge the garnishee on the basis of its deposition – Zenith Bank Plc v. Kano (2016) LPELR 40335(CA), United Bank for Africa Plc v. Access Bank Plc & Anor (2018) LPELR 44058(CA), All Works Commercial Company Ltd v. Central Bank of Nigeria ?(2018) LPELR 45991(CA). It is within these three scenarios that a trial Court can exercise the discretion given to it under Section 87 of the Sheriffs and Civil Process Act. Outside these three scenarios, this Court is not aware that the provisions of Section 87 of the Sheriffs and Civil Process Act can be interpreted to accommodate any other step that may be taken by a trial Court where a garnishee appears and denies liability.”

Per PETER OYINKENMIEMI AFFEN ,JCA (Pp. 13-18, paras. F-B)

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PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Instance(s) in which a garnishee will be held to have denied/disputed its liability/indebtedness to the judgment debtor

“Now, the chapeau of S. 87 SCPA reads: “If the Garnishee appears and disputes his liability”. The word “dispute” in this context is a verb and not a noun. As such, the reference in the Appellant’s Brief to Black’s Law Dictionary (which defines ‘dispute’ as a noun: “A conflict or controversy, esp. one that has given rise to a particular lawsuit”) is inapposite. The Chambers 21st Century Dictionary (Revised Edition) defines the verb as: To question or deny the accuracy or validity of (a statement, etc); to quarrel over rights to or possession of something; to argue about something. Thus, a garnishee who questions or denies being indebted to the judgment debtor is said to dispute his liability. In the instant case, by deposing in the affidavit to show cause that ‘a search conducted on its records revealed several customers with names similar to that of the judgment debtor and further particulars such as middle name, specimen signature, photo identification and address are required in view of the multiplicity of names similar to that of the Judgment Debtor and the possibility that the owners of the said accounts may be different from the judgment debtor’, it seems to me that the Appellant has questioned or denied being indebted to the judgment debtor. What the Appellant is saying in essence is that: ‘Without the further particulars I request of you, I am unable to confirm from my records if the judgment debtor has any account(s) with me out of which any funds can be paid over to you in satisfaction of the judgment debt’. To my mind, this constitutes denial of liability within the meaning and intendment of S. 87 SCPA. The 1st Respondent’s insistence that S. 87 SCPA contemplates a dispute as to whether the garnishee is liable to a judgment debtor in the sum sought to be garnished in its custody and not whether the particulars of a judgment debtor are insufficient to determine his identity seems to me a curious argument. Pray, if the particulars supplied by the judgment creditor or information available to the garnishee are such that the identity of the judgment debtor cannot be readily ascertained, how then can the garnishee confirm whether he has monies standing to the credit of that judgment debtor which can be paid over to the judgment creditor in satisfaction of the judgment debt? Especially is this so as the garnishee order nisi served on the Appellant did not contain any account number or other particulars of the judgment debtor with which his account with the garnishee (if any) could have been traced.”

Per PETER OYINKENMIEMI AFFEN ,JCA (Pp. 23-26, paras. F-A)

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PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Duty of judgment creditor to supply necessary materials to show that a garnishee is indebted to the judgment debtor; whether a garnishee bank can request for the BVN and other details of the judgment debtor

“…I must confess that I struggle with the thought process and the ensuing judicial reasoning of the lower Court. Since the 1st Respondent (qua Judgment Creditor) did not provide any BVN and none is contained in the garnishee order nisi served on the Appellant (qua 13th Garnishee), it is difficult in the extreme to appreciate how the judgment debtor’s identity could be settled by reference to a BVN that was not supplied. Since every account holder has or is expected to have a BVN, it stands to reason that it is if, and only if, the BVN of a particular customer is made available to the bank that his identity can be traced with the aid of that BVN. But where no BVN is supplied as in the instant case, and all the customers of the bank with similar names equally have BVNs, then cadit quaestio! How can BVN settle the issue of identity of any of the customers with similar names? The answer is flying in the wind, and I take the considered view that the lower Court ought to have been a lot more circumspect in order to be reasonably assured, nay satisfied, that the Appellant (13th Garnishee) was actually indebted to that particular judgment debtor [i.e. that the judgment debtor maintains an account with the garnishee] before recording a garnishee order absolute. Whilst the law enjoins a garnishee to make full and frank disclosure of funds of a judgment debtor in his custody, not setting out the different accounts with similar names in the Appellant’s affidavit to show cause per se does not justify the hasty conclusion reached by the lower Court. This is so because the burden to supply necessary materials showing that the Appellant was indebted to the judgment debtor lies on the 1st Respondent but not the Appellant; and given the confidential nature of the banker-customer relationship, no legal duty is imposed on the Appellant to disclose the identity and other details of its several customers with similar names as the judgment debtor. An analogous scenario arose in ACCESS BANK PLC v. CHIDI OBIEFUNA (2020) LPELR-49855(CA) where the appellant (garnishee) requested for the BVN and photograph of the judgment debtor because there were several customers with similar names in its database, but the respondent (judgment creditor) insisted that BVN settled the issue of identity of a bank customer and the garnishee was merely shielding the funds of the judgment debtor in its custody. It was held (per B. M. Ugo, JCA) that the burden of proof, which includes the burden to supply necessary materials showing that the garnishee is indebted to a judgment debtor, rested with the judgment creditor, and that it is only when the judgment creditor discharges that duty by supplying necessary materials such as BVN or photograph to enable the garnishee identify the judgment debtor that the issue of whether the appellant shielded the true state of the said judgment debtor’s account would arise. The Court not only held that a further affidavit of some sort by the respondent (judgment creditor) was expedient if he did not agree with the assertions of the appellant (garnishee) in his affidavit, but described as preposterous the suggestion that the appellant should have produced the photograph and bank details of customers with similar names who are entitled to some secrecy in their dealings with the appellant bank, insisting that it was the respondent’s duty to supply the judgment debtor’s BVN and the lower Court was mistaken to have “turned the burden of proof upside down and reasoned that appellant’s should have sorted out the said accounts with BVN. Tracing of accounts through Bank Verification Number (BVN) even by a Bank cannot be done on a void as suggested by the lower Court; it is common knowledge that it is only when a particular customer’s BVN Number is known that anyone interested in knowing his other accounts can trace them”. I kowtow. I cannot agree less. I cannot agree more.”

Per PETER OYINKENMIEMI AFFEN ,JCA (Pp. 27-30, paras. A-D)

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JUDGMENT AND ORDER – ORDER OF GARNISHEE – Instance(s) in which a garnishee order nisi will not be made absolute

“As noted in GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR supra, a garnishee order nisi will not be made absolute where a garnishee shows that he is not holding any money belonging to the judgment debtor, or that money belonging to the judgment debtor in his possession is the subject of litigation or has been assigned to a third party or any other legal and reasonable excuse.”

Per PETER OYINKENMIEMI AFFEN ,JCA (P. 30, paras. D-F)

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PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Whether judgment creditor is at liberty to proceed against third party/garnishee not shown to be indebted to the judgment debtor; attitude of Court to practice of suing all banks operating in Nigeria without details of the account of the judgment debtor

“?The point was made at the outset that the attractiveness of garnishee proceedings is fast becoming its bane in our jurisprudence. There is a growing tendency to commence garnishee proceedings against all banks licensed by the Central Bank of Nigeria to operate in the country as in the instant case where nineteen banks were listed as garnishees; and the deponent of the affidavit in support of the ex parte application merely averred that he was informed by the judgment creditor that the judgment debtor “maintains an account with the garnishees to satisfy the judgment sum of N35,000,000” without supplying the number or other details of the “account” the judgment debtor allegedly maintains with all the garnishees. The reason often advanced for this practice is that the confidential nature of the banker-customer relationship prevents judgment creditors from having ready access to bank details of judgment debtors. Whilst the difficulty of ascertaining the account details of judgment debtors is appreciated, that does not seem to me a valid basis for Courts of law to condone the insidious practice of initiating garnishee proceedings against all banks operating in Nigeria merely on the say-so of a judgment creditor that the judgment debtor maintains an account(s) with the garnishees without providing any basis for that assertion. The point to underscore is that just as “the cause of action accruable to a garnishee in garnishee proceedings is quite a limited one” which does not permit him to fight the cause of the judgment debtor [see GTB v INNOSON [2018] LPELR-423368(SC)], it equally occurs to me that the right of a judgment creditor to recover a money judgment by means of garnishee proceedings is not at large but one that lies within defined parameters. Indeed, ‘the terrain of garnishee proceedings is not that much loose and free of any duty, rather it is well guarded by some conditions inherent in S. 83(1) of the Sheriffs and Civil Process Act’. See ECOBANK v. UDOFIA [2018] LPELR-45164(CA) 1 at 10 -per Adah JCA. The section provides thusly: “The Court may, upon the exparte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied as to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid” (Underlining supplied). The above provision enjoins the judgment creditor (applicant) or his legal practitioner to inter alia show in the affidavit in support of the ex parte application by which garnishee proceedings are commenced that “any other person is indebted to such debtor”. To my mind, what this means is that the affidavit must disclose the fact of indebtedness of the third party to the judgment debtor, and not merely that the third party is likely to be indebted. The basic premise of garnishee proceedings is that it can only lie against a debtor to the judgment debtor, hence a judgment creditor has no right whatsoever to proceed against any person who is not shown to be indebted to the judgment debtor in the supporting affidavit. As stated hereinbefore, even though garnishee proceedings are a means of enforcing a money judgment, it is a fresh enforcement action, a separate and independent proceeding from the original action that generated the judgment debt and which can be brought in any Court the judgment creditor can ordinarily sue the garnishee, and this need not be the Court that gave the judgment. See Order VIII Rules 3(b) and 9 of the Judgment Enforcement Rules. In the scheme of legal proceedings, the existence of a cause of action is a prelude to every Court action: the very foundation for the writ issued. A claimant without cause of action cannot by any ingenuity sustain the action. See ATTORNEY-GENERAL, ANAMBRA & ORS v. OKAFOR & ORS [1992] 2 NWLR (PT. 224) 296, (1992) LPELR-3156(SC) 1 at 47-48 -per Olatawura, JSC. Garnishee proceedings are not an exception. Cause of action is the factual basis that gives rise to an enforceable claim; the wrongful action or inaction on the part of the defendant that donates to the claimant a legal basis for complaint. SeeTHOMAS v. OLUFOSOYE [1986] 1 NWLR (PT. 18) 669. A cause of action must be shown to have arisen at the commencement of the action, not subsequently. In the context of garnishee proceedings, the ‘wrongful action’ that gives the judgment creditor a basis to sue the third party (i.e. garnishee) is the fact that he is indebted to the judgment debtor. Thus, the judgment creditor’s cause of action under S. 83(1) SCPA is one that is severely limited. There is no actionable wrong where the garnishee is not indebted to the judgment debtor and the judgment creditor is not at liberty to proceed against a third party (including a bank) that is not shown to be indebted to the judgment debtor. To put it bluntly, a judgment creditor does not have an untrammeled right of action to proceed against any person who catches his fancy: he is only entitled to sue a person indebted to the judgment debtor. Prima facie, suing all banks operating in the country is a clear pointer to the fact that the judgment creditor is unsure of the bank(s) indebted to the judgment debtor and the bank(s) not so indebted. Such an action is a fishing expedition by the judgment creditor initiated in the hope that one or more of the banks could be caught by his dragnet. It is hardly necessary to state that this is prone to capricious abuse and ought to be reined in by the eternal vigilance of the Courts. In this regard, it seems to me that the English practice, as contained in Rule 72.3 of “Practice Direction 72 – Third Party Debt Orders”, offers a useful guide: “Application notice – Rule 72.3 1.1 An application for a third party debt order must be made by filing an application notice in Practice Form N349. 1.2 The application notice must contain the following information – (1) the name and address of the judgment debtor; (2) details of the judgment or order sought to be enforced; (3) the amount of money remaining due under the judgment or order; (4) if the judgment debt is payable by instalments, the amount of any instalments which have fallen due and remain unpaid; (5) the name and address of the third party; (6) if the third party is a bank or building society – (a) its name and the address of the branch at which the judgment debtor’s account is believed to be held; and (b) the account number; or, if the judgment creditor does not know all or part of this information, that fact; (7) confirmation that to the best of the judgment creditor’s knowledge or belief the third party – (a) is within the jurisdiction; and (b) owes money to or holds money to the credit of the judgment debtor; (8) if the judgment creditor knows or believes that any person other than the judgment debtor has any claim to the money owed by the third party – (a) his name and (if known) his address; and (b) such information as is known to the judgment creditor about his claim; (9) details of any other applications for third party debt orders issued by the judgment creditor in respect of the same judgment debt; and (10) the sources or grounds of the judgment creditor’s knowledge or belief of the matters referred to in (7), (8) and (9). 1.3 The Court will not grant speculative applications for third party debt orders, and will only make an interim third party debt order against a bank or building society if the judgment creditor’s application notice contains evidence to substantiate his belief that the judgment debtor has an account with the bank or building society in question. See also Halsbury’s Laws of England (4th ed. Reissue), Vol. 17(1), para. 257 as well as Order 51 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which prescribes the content of an affidavit filed in support of ex parte application for garnishee proceedings. The case of OCEANIC BANK PLC v OLADEPO supra at 22 – 23 donates the proposition that garnishee proceedings against a bank is “not speculative simply because the account number and exact amount [standing] to the credit of the judgment debtor were not stated”. But whilst it would seem that S. 83(1) SCPA does not impose a strict obligation to provide the account details of a judgment debtor as a precondition for initiating garnishee proceedings against a bank, the provision enjoins the judgment creditor/applicant or his legal practitioner to show upon affidavit that the third party (bank) is indebted to the judgment debtor. What this means is that the applicant is required to show that the judgment debtor maintains an account with the bank. The point has already been made that one can readily appreciate that banker-customer privilege makes it difficult, if not impossible, for a judgment creditor/applicant to ascertain the number and other details of the judgment debtor’s bank account. Nevertheless, a judgment creditor/applicant should, at the very minimum, show that his judgment debtor maintains an account with a particular bank before naming it as a garnishee. A routine search at the Corporate Affairs Commission (CAC) will disclose the banker(s) of judgment debtors that are companies or other corporate entities required by law to file annual returns. In the case of individuals, basic enquiries in the course of dealings between the parties will reveal their banker(s) in most cases. It seems to me therefore that listing all banks operating in the country as garnishees is a signpost of failure or neglect to satisfy this basic requirement, and the ex parte application for garnishee order nisi ought to be refused; or granted if, and only if, the applicant gives an undertaking as to damages [or to pay costs on full indemnity basis] where it turns out that the judgment debtor does not maintain an account with the garnishees or any of them. The legal basis for this is that a garnishee order nisi is a specie of injunctive order made on an ex parte application for which binding case law imposes a duty on the hearing Court to extract an undertaking as to damages (being the quid pro quo offered by the applicant) as a precondition for granting such ex parte applications. See KOTOYE v. CBN [1989] 1 NWLR (PT. 98) 419 at 449-450 -per Nnaemeka-Agu JSC, and 456 -per Nnamani JSC. ?The emerging practice of routinely listing all banks operating in the country as garnishees (as in the instant case) and thereby exposing them to needless expense without the slightest effort to first show the particular bank(s) indebted to the judgment debtor is one that should not be encouraged for its deleterious effect. The far-reaching implications of allowing all banks operating in this country to be dragged to Court willy-nilly to answer to garnishee proceedings at the instance of every litigant who obtains a favourable money judgment from all Courts in Nigeria can only be imagined. It is akin to a scenario in which a claimant who has obtained a favourable money judgment against a defendant to whom an unidentified Kaduna-based lawyer is [or likely to be] indebted, takes liberty to initiate garnishee proceedings against all lawyers based in Kaduna in the hope that someone might turn out to be that lawyer. It is as ridiculous as that! The Court, as custodian of the law, has the final say where the interest of justice is at stake and must be acutely aware of the economic impact of judicial decisions. See Shimmon Shereet & Sophie Turenne, Judges On Trial: The Independence and Accountability of the English Judiciary, 2nd ed., (Cambridge University Press, 2013), p. 48. Whilst the Courts ‘do not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances’ [see VASWANI TRADING CO v. SAVALAKH & CO (1972) 12 SC 77 and THE ANNOT LYLE (1886) 11 P.D. 114 at 116 -per Bowen, LJ] and would readily lend judicial aid in the enforcement of Court judgments, I reckon that this judicial disposition ought to be balanced against the imperative of protecting citizens from being harassed by unprovoked litigation or other Court proceedings initiated without any demonstrable cause of action, which is consistent with the Court’s bounden duty to weigh the competing rights of parties. The point being made here is that, as a matter of practice, once a garnishee order nisi is issued against all banks upon penalty of the order being made absolute if they fail or neglect to appear before the Court on the return date to show cause, the banks are constrained to engage the services of legal counsel to represent each of them in the proceedings, only for all but one or two of the banks to be routinely discharged at the end of the day for not being indebted to the judgment debtor (which is actually an euphemism for non-disclosure of cause of action against the discharged banks) usually without any form of compensation by way of costs. And even on those rare instances where costs are awarded, the rather frugal attitude of the Courts (which is inconsistent with the principles to be observed in fixing costs as provided in the various rules of Court) only serves to ensure that the amount often awarded [arbitrarily] as costs scarcely makes up for expense incurred by the discharged banks. It seems to me therefore that allowing this unwholesome practice to gain traction without any checks is to overstretch the banks unjustifiably by imposing on them the gratuitous burden of defending a deluge of farfetched garnishee proceedings day after day from Court to Court across the entire length and breadth of the country with grave implications for our economy that is already being asphyxiated on many fronts. It must not be!”

Per PETER OYINKENMIEMI AFFEN ,JCA (Pp. 31-44, paras. E-B)

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PRACTICE AND PROCEDURE – GARNISHEE PROCEEDINGS – Duty of Court to ensure that a judgment debtor maintains an account with a garnishee bank before making an order nisi absolute

“It is settled law that before a trial Court grants an Order absolute, it must ensure that the Judgment debtor in fact maintains an account with the garnishee. The trial Court should not rely on speculation but it must satisfy, itself that indeed it is the Judgment debtor who maintains an account with the garnishee. This becomes necessary especially where the deposition in the garnishee’s affidavit to show cause reveals that there are several customers with names similar to that of the judgment debtor. The lower Court was therefore in error to have granted an order absolute against the garnishee/appellant without ensuring that the judgment debtor in fact maintains an account with the Appellant.”

Per ABUBAKAR MAHMUD TALBA ,JCA (Pp. 45-46, paras. F-D)

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GTB V. TAFIDA & ANOR

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction. The relative convenience and efficacy of garnishee proceedings as a process of enforcing monetary judgments commend it as the option of first resort for judgment creditors and their legal counsel. But the severely limited scope of garnishee proceedings is the subject of a great deal of misapprehension, and its attractiveness is fast becoming its bane in Nigerian jurisprudence. This appeal stems from a garnishee order absolute granted by the High Court of Kaduna State (Coram: David Wyoms, J.) on 12th July 2016 in Suit No. KDH/KAD/188/08: Engr. Musa Bamanga Tafida v Arch. Dewu Mohammed. The 1st Respondent herein [Engr. Musa Bamaga Tafida], having obtained judgment in the sum of N35,000,000.00 (Thirty Five Million Naira) against the 2nd Respondent [Arch. Dewu Mohammed], commenced garnishee proceedings against nineteen (19) commercial banks, including the Appellant [Guaranty Trust Bank] as 13th Garnishee. In obedience to the order nisi issued by the lower Court on 29/1/16, the nineteen banks filed separate affidavits to show cause (as garnishees) and in the end, all but

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two of the banks were discharged on the ground that the judgment debtor held no account with them.

The Garnishee order nisi was made absolute against the 1st Garnishee [Diamond Bank Plc] in the sum of N34,998.02 (Thirty Four Thousand Nine Hundred and Ninety Eight Naira Two Kobo) standing to the credit of the judgment debtors account with it. In respect of the Appellant (13th Garnishee), the lower Court was unenthused by the depositions contained in its affidavit to show cause and held that the 13th Garnishee failed to place before this Court sufficient reason why the Court should not make an Order Absolute. The garnishee order nisi dated 29/1/2016 was thus made absolute against the Appellant in the sum of N35m or so much thereof as will satisfy the judgment debt (see pp. 46 50 of the record).

Dissatisfied with this state of affairs, the Appellant lodged the present appeal vide an original notice of appeal filed on 13/7/16, which was subsequently amended with the leave of this Court. The Amended Notice of Appeal is dated 5/11/2020 but filed on 6/11/2020. Briefs of argument were filed and duly exchanged between the Appellant

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and the 1st Respondent, whilst the 2nd Respondent opted to stand aloof and do nothing.

Issues for determination

The two issues for determination distilled in the Appellants Brief of Argument dated 10/11/2020 but filed on 16/11/2020 are:

Whether the lower Court rightly decreed an order absolute against the appellant (Distilled from Ground 1 of the Amended Notice of Appeal)
Whether the lower Court rightly held that the Bank Verification Number (BVN) of a customer settles the issue of the identity of such bank customer? (Distilled from Ground 2 of the Amended Notice of Appeal).

In the 1st Respondents Brief dated and filed on 9/10/2020, two issues for determination are equally distilled as follows:

Whether the garnishee order absolute granted in favour of the 1st Respondent by the trial Court was right and proper in law (Ground 1).
Whether the trial Court was right when it held that customers Bank Verification Number (BVN) settles the issue as to identity of the customer of such bank (Ground 2).

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What is immediately obvious is that the two sets of issues formulated by the parties (as reproduced above) are essentially the same, save that the 1st Respondent employed different words merely for the sake of sounding different but without donating any utilitarian value or serving any useful practical purpose. I will adopt the issues nominated by the Appellant in resolving this appeal, even as both issues can conveniently be taken together since the lower Court decreed a garnishee order absolute on the basis that BVN settles the identity of a bank customer.

Appellants submissions

The Appellant contends that the lower Court erroneously decreed a garnishee order absolute against it, insisting that where a garnishee appears and disputes his liability, a duty is imposed on the lower Court under S. 87 of the Sheriffs and Civil Process Act (SCPA) to order that any issue or question necessary for determining the liability or otherwise of the garnishee be determined instead of making an order that execution shall issue. The Appellant maintained that the unchallenged depositions in paragraphs 4 and 5 of the affidavit to show cause dated 12/2/16 raised doubt, uncertainty and controversy as to the proper identity of the judgment

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debtor given the fact that several accounts with names similar to the judgment debtor existed in its database, but the lower Court failed to properly appreciate and appraise. The definition of dispute in Blacks Law Dictionary (9th ed.) and the case of MICAH v. HON MINISTER OF THE FCT & ANOR (2018) LPELR-44917(CA) (on the Courts duty to act on the contents of uncontradicted affidavits), U.B.A. PLC v SAS & ORS (2015) LPELR-40394(CA), OCEANIC BANK v. OLADEPO & ANOR (2012) LPELR-19670(CA) 1 at 28 and TOTAL UPSTREAM (NIG) LTD v. A.I.C. LTD & ORS [2015] LPELR-25388(CA) 1 at 41-45 were cited.

The Appellant argued that, assuming without conceding, the depositions in the affidavit to show did not warrant a recourse to S. 87 SCPA , there was an onerous duty on the Court to ensure that the account to be garnished must of necessity and with certainty be the account of the judgment debtor (the 2nd respondent herein) and no other person whatsoever, the garnishee order absolute was not properly made since the lower Court did not ascertain that the judgment debtor maintained an account with the Appellant, placing reliance on

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ECOBANK v. UDOFIA & ANOR (2018) LPELR-54164(CA) 1 at 14 and 19.

The further contention of the Appellant is that there was no oral or affidavit evidence in support of the 1st Respondents contention that the Bank Verification Number (BVN) of a bank customer settles with finality the identity of such customer and the lower Court was in error to have made the garnishee order absolute on the basis of counsels submission which is not a substitute for evidence, citing ACTION ALLIANCE & ORS v. INEC (2019) LPELR-49364 (CA) and BANK OF THE NORTH LTD v. OBANSA (2010) LPELR-3852(CA) and insisting that the issue of BVN settling the identity of a bank customer is not a fact the Court could take judicial notice of under S. 122 of the Evidence Act . This Court was urged to allow the appeal and set aside the garnishee order absolute.

1st Respondents submission

The response of the 1st Respondent is that the garnishee order absolute granted in his favour was right and proper in law as the Appellant did not dispute liability as required by law and the contention that the lower Court ought to have complied with S. 87 SCPA is

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misconceived; and that what is required of the Appellant under S. 83 SCPA was to appear before the Court on a named date to show cause why the garnishee order nisi should not be made absolute against it and not to deliberately whip up controversies and doubts in order to shield and protect the funds of the judgment debtor in its custody, calling in aid the cases of U.B.A. PLC v. SAS & ORS supra at 18, SKYE BANK PLC v. DAVID & ORS (2014) LPELR-23731(CA), OCEANIC BANK v. OLADEPO supra and VINAL v. DE PASS (1892) AC 90. The Respondent maintained that what S. 87 SCPA contemplates is a dispute as to whether or not the garnishee is liable to the judgement debtor into sum sought to be garnished in its custody and not whether the particulars of the judgment debtor are insufficient to determine his identity, as such the deposition in paragraphs 4 and 5 all the Appellants affidavit to show cause did not and cannot by any stretch of ingenious reasoning be said to constitute a dispute as to the Appellants liability to the 2nd Respondent; that the Appellants request for details of its own customer is an exhibition of cleverness by half which

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raises questions as to how the Appellant knew that the 2nd Respondent had a third name or how the 1st respondent is expected to be in possession of the 2nd Respondents specimen signature and means of identification; and that the Appellant placed itself in a precarious position by alleging that there are multiple customers with names similar to the 1st Respondent without stating these similar names in the affidavit showing cause, insisting that the cases of U.B.A. PLC v. SAS & ORS supra and TOTAL UPSTREAM (NIG) LTD v. A. I. C. LTD & ORS supra and ECOBANK PLC v. UDOFIA supra are inapt and do not advance the Appellants case.

The 1st Respondent further argued that assuming without conceding that names similar to that of the 2nd Respondent (judgment debtor) where discovered in its database as alleged, the Appellant ought to have resorted to the Bank Verification Number of 2nd Respondent which is a unique biometric identification system with a unique identity to a customer in all commercial banks implemented by the Central Bank of Nigeria in line with the Central Bank of Nigeria Act having regards (sic) to the fact that no

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customer of a bank, no my padded number of accounts variously or severally operated in one or more banks can be assigned with more than one bank verification number; that BVN is a product of the Regulatory Framework for Bank Verification Number Operations issued by Central Bank of Nigeria pursuant to Ss. 2(d) and 47(2) of the CBN Act 2007 , which is a subsidiary legislation having the force of law that the Courts can take judicial notice under S. 122(2)(a) of the Evidence Act 2011 , citing LAFIA LOCAL GOVERNMENT v. EXECUTIVE GOVERNOR OF NASARAWA STATE & ORS [2012] 17 NWLR (PT.1328) 94, AHMADU BELLO UNIVERSITY v. MOLOKUN [2003] 9 NWLR (PT. 825) 205, BENDEL NEWSPAPER CORPORATION v. OKAFOR [1993] 4 NWLR (PT. 289) 617, DANTUBU v. ADENE [1987] 4 NWLR (PT. 65) 314 and R v. ASPINALL (1876) QBD 48 at 61-62, and insisting that the Appellants contention that the 1st Respondent ought to have led evidence to prove that BVN settles the issue of identity of the customer with finality is not only lame but misconceived. The Court was urged to affirm the decision of the lower Court and dismiss the appeal.

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Resolution of the appeal

The central issue agitated in this appeal is whether the lower Court rightly recorded a garnishee order absolute against the Appellant in the peculiar facts and circumstances that came to light in these proceedings. Garnishee proceedings are separate and distinct from the original action that generated the judgment sought to be enforced. See HERITAGE BANK LTD v. INTERLAGOS OIL LTD (2018) LPELR 44801 (CA) and POLARIS BANK v. GUMAU & ORS (2019) LPELR-47066(CA) .

The governing principles as well as the procedure for initiating and resisting garnishee proceedings are stipulated in Ss. 83 91 of the Sheriffs and Civil Process Act, Cap 407, LFN 2004 (SCPA) , Order VIII of the Judgment Enforcement Rules and the civil procedure rules of some first instance Courts; and there is an impressive array of decisions from the stable of the Supreme Court and this Court on this almost seamless process of enforcing money judgments. In simple terms, garnishee proceedings [or garnishment] is a judicial proceeding in which a judgment creditor entreats the Court to order a third party who is indebted to the judgement debtor to turn over to the creditor any of the debtor’s

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property (such as wages or bank accounts) held by that third party. It affords a harsh and extraordinary remedy, if not a somewhat anomalous statutory invention sui generis, with no affinity to any action known to the common law. Garnishment is a method of seizure but not a levy in the usual acceptation of that term; a proceeding by which a diligent creditor may legally obtain preference over other creditors; and it is in the nature of a creditor’s bill, or a sequestration of the effects of a debtor in the hands of his debtor. See Blacks Law Dictionary (8th ed.), pp. 702 -703 . The amount at the credit of a judgment debtor in his bank account is property of the judgment debtor consisting of a debt and the bank is the person indebted under S. 83(1) SCPA ; and once made, the order nisi binds the debt in the hands of the garnishee, that is, creates a charge in favour of the judgment creditor. See HARRY FLIONE v. PHILIP A. OLADIPO (IN RE BARCLAYS BANK GARNISHEES) (1934) VOL X1 NLR 168. In GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR (2019) LPELR-47441(SC) 1 at 23-25 , his Lordship, Okoro JSC stated thus:

GTB V. TAFIDA & ANOR

A garnishee proceedings is usually commenced by an ex-parte application made to the Court having jurisdiction to hear the matter by the Judgment creditor and the orders of the Court usually come in two steps. The first is a garnishee order NISI. Simply, NISI is a Norman – French word which means “Unless”. It is therefore an order made, at that stage, that the sum covered by the application be paid into Court or to the judgment creditor within a stated time unless there is sufficient reason given by the party on whom the order is directed why the payment ordered should not be made. Such reasons could be that he does not hold any money belonging to the judgment debtor or that such money belonging to the judgment debtor in his possession is a subject of litigation or has been assigned to a third party or any other legal and reasonable excuse. If no sufficient reason is given, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the judgment creditor. The Court then becomes functus officio as far as that matter is concerned in that the Judge

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who decided the matter is precluded from again considering the matter even if new evidence or argument are presented to him. See Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd & Ors (2005) 13 NWLR (pt. 943) 654, Choice Investments Ltd v. Jeromnimon (Midland Bank Ltd. Garnishee) (1981) 1 All ER 225 at 328, Guaranty Trust Bank Plc v. Innoson Nig. Ltd (2017) LPELR-42368 (SC) .

A conspectus of decided cases on garnishee proceedings reveal that little or no issues arise where a garnishee does not appear in Court to show cause or otherwise fails to make a return upon being served with a garnishee order nisi, in which case the Court is duty bound to proceed to make absolute the garnishee order nisi without further assurance. That is what S. 86 SCPA as well as the Supreme Court decision in UBN v. BONEY MARCUS INDUSTRIES LTD [2005] 13 NWLR (PT. 943) 656 at 666 enjoin the Court to do. Thus, a third party who fails to appear in Court or otherwise ignores a garnishee order nisi duly served on him does so at his own peril .

Not infrequently however, issues arise where a garnishee appears in Court in obedience to the garnishee order nisi and files

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an affidavit to show cause. The course open to a Court in such a situation is provided for in S. 87 SCPA : If the garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining his liability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined or may refer the matter to a referee . But the determination of whether or not a garnishee has actually disputed his liability is not always a walk in the park, and the discretion of first instance Courts has been disturbed on appeal in not a few cases on the basis that S. 87 SCPA which stipulates what procedure to be adopted by the trial Court, where liability for the Judgment debt is DISPUTED by the Garnishee, indeed limits the exercise of the Court’s discretion to either, to call for trial of the case, or to refer the matter to a referee. No other procedure is implied in the provisions of that statute. See MAINSTREET BANK LTD v. U.B.A. (2014) LPELR-24119(CA) 1 at 26-28.

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The cases of POLARIS BANK v. GUMAU & ORS (2019) LPELR-47066(CA)1 at 34-37, STERLING BANK v. GUMAU & ORS (2019) LPELR-47067(CA) 1 at 19-35 and FIDELITY BANK PLC v. GUMAU & ANOR (2019) LPELR-47068(CA) are a trilogy of appeals in which his Lordship, Abiru JCA queried rhetorically: When is there said to be a dispute of liability by a garnishee and which requires further enquiry under S. 87 of the Sheriffs and Civil process Act ? before proceeding to expound the legal position with characteristic clarity as follows:

Three scenarios have emerged from the interpretation of the Courts as to what a trial Court can do where a garnishee appears in obedience to a garnishee order nisi and disputes liability by filing an affidavit to show cause. The first is that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee and the affidavit to show cause of the garnishee denying liability fails to condescend on material particulars and does not conflict with the facts deposed by the judgment creditor, the trial Court can proceed to make an order of garnishee absolute, notwithstanding the affidavit to

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show cause – Skye Bank Plc v. Colombara & Anor (2014) LPELR 22641(CA), Governor of Imo State v. Ogoh (2015) LPELR 25949(CA), Access Bank Plc v. Adewusi (2017) LPELR 43495(CA), First Bank of Nigeria Plc v. Okon (2017) LPELR 43530(CA), Heritage Bank Ltd v. Interlagos Oil Ltd (2018) LPELR 44801(CA), First Bank of Nigeria Plc v. Yegwa (2018) LPELR 45997(CA) . The second scenario is that where a judgment creditor gives specific and clear facts in an affidavit showing that monies of a judgment debtor are in the hands of a garnishee and the affidavit to show cause of the garnishee denying liability condescends on particulars and conflict with the facts deposed by the judgment creditor, the trial Court cannot proceed to make a garnishee order absolute and must constitute the question of the liability of the garnishee as an issue to be tried or determined in any manner in which any issue in a proceeding is tried or determined, or he may refer the matter to a referee – Central Bank of Nigeria v. Hydro Air Property Ltd (2014) 16 NWLR (Pt 1434) 482, Mainstreet Bank Ltd v. United Bank for Africa Plc (2014) LPELR 24118(CA), Eco Bank (Nig) Plc v. Mbanefo & Bros Ltd

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(2014) LPELR 41106(CA), Total Upstream Nigeria Ltd v. A.I.C. Limited (2015) LPELR 25388(CA). Order 8 Rule 8(2) of the Judgment Enforcement Procedure Rules provides that in this situation, the Court shall set the issue or question down for hearing and shall direct which of the persons interested shall be plaintiff and which shall be defendant and the parties shall be at liberty to lead evidence – Central Bank of Nigeria v. Sun & Paddy International Group (Nig) Ltd (2018) LPELR 44766(CA). The third scenario is that where a garnishee order nisi is granted on the basis of a general statement of a judgment creditor that monies of a judgment debtor are in the hands of a garnishee, and the affidavit to show cause of the garnishee denying liability condescends on particulars showing that it has no such funds, and the judgment creditor fails to depose to a further affidavit contesting the assertions of the garnishee, the trial Court may discharge the garnishee on the basis of its deposition – Zenith Bank Plc v. Kano (2016) LPELR 40335(CA), United Bank for Africa Plc v. Access Bank Plc & Anor (2018) LPELR 44058(CA), All Works Commercial Company Ltd v. Central Bank of Nigeria

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(2018) LPELR 45991(CA). It is within these three scenarios that a trial Court can exercise the discretion given to it under Section 87 of the Sheriffs and Civil Process Act . Outside these three scenarios, this Court is not aware that the provisions of Section 87 of the Sheriffs and Civil Process Act can be interpreted to accommodate any other step that may be taken by a trial Court where a garnishee appears and denies liability (Underlining supplied)

It would seem that it is the third scenario we are confronted with in the instant appeal. The lower Court granted a garnishee order nisi on the basis of a general statement of the judgment creditor that monies of the judgment debtor are in the hands of the garnishees and the Appellant (as 13th Garnishee) filed an affidavit to show cause requesting for further particulars to enable it identify the judgment debtor amongst several customers with similar names in its database. The lower Court proceeded to make a garnishee order absolute even though the 1st Respondent (judgment creditor) did not file any counter affidavit to contradict the Appellants affidavit to show cause. In

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support of the 1st Respondents ex parte application for garnishee proceedings (at pp. 5-7 of the record), one Kabir Momoh (a counsel in the law firm of Abdulahi Ibrahim & Co., solicitors to the judgment creditor/applicant) deposed thus:

I am informed by the Judgment Creditor/Applicant on 4/01/16 at about 2:00 pm in our Chambers while taking further briefing and instruction from him and I verily believe him as follows:
a) That the judgement debtor maintains an account with the garnishees to satisfy the judgment sum on of N35,000,000.
b) That the garnishees have branches (sic) offices in Kaduna within the jurisdiction of this honourable Court.
c) That the judgement debtor has made it difficult to enjoy the fruits of the judgement of the Court, hence this application.
It is in the interest of justice to grant this application.
The grant of this application will not prejudice the garnishees.

The relevant paragraphs of the affidavit to show cause filed by the Appellant in obedience to the order nisi (which is deposed on 17/2/2016 by one Muhammed Musa, a counsel in the law firm of Lekanmi

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Ipaye & Co) read as follows:

That on February 9, 2016, the Bank was served with a Garnishee Order Nisi issued by this Honourable Court.
That following the service of the said Garnishee Order Nisi, the bank conducted a search of its records, which revealed that there are several accounts with similar names to that of the Judgment Debtor.
That the Bank would require further particulars including the third name, specimen signature, photo identification as well as relevant address in view of the multiplicity of names similar to that of the Judgment Debtor.
That in view of the high possibility that the owners of the accounts referred to in paragraph 4 above may be different from the said above Judgment Debtor, the Bank respectfully urges the Court to grant the request in paragraph 5 above.
That the Bank disclosed the facts herein in compliance with the Order of this Honourable Court.

The lower Court was not enthused in the least by the above depositions in the Appellants affidavit to show cause. At pp. 4950 of the record, it was held thus:

Taken (sic) a critical look

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at the averment in paragraph 5 of the 13th Garnishees affidavit, is it the duty of the Judgement Creditor to provide those details? All that is required of the Garnishee Bank is to conduct a search and to forward to this Court with its outcome (sic) as to whether there is any sum outstanding in an account maintained by the Judgement Debtor. As it is now, the 13th Garnishee is not denying that the Judgement Debtor is its customer, or that he does not maintain an account with them. The Garnishee is also not denying that the funds of the Judgement Debtor are in its custody. Rather they are saying in paragraph 4 that upon conducting search of its records, it revealed that there are several accounts with similar names to the Judgement Debtor, maintained with the Bank. The several names they adjudged to be similar to that of the Judgement Debtor were not stated or provided. Do these names have different Bank Verification Number (BVN)? This, the Garnishee failed to show. With the new innovation in the banking system in this country, the same person cannot have different BVN by which process the identity of the customer is known.

As to the provision of

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Section 87 of the Sheriff and Civil Process Act , the opening line therein state that if the Garnishee appears and disputes his liability

From the affidavit and in particular paragraph 4 & 5, it will appear that the Garnishee is not disputing its liability but rather the similarity in the names of the Judgement Debtor and which names the bank failed to disclose to this Court. Having not stated these facts, and in view of the fact that BVN settle the issue of identification of a bank customer, I hold that the 13th Garnishee failed to place before this Court sufficient reason why the Court should not make an Order Absolute.

In the light of the above, the Garnishee Nisi made on the 29/1/2016 is now made Absolute attaching the sum of money held in and under the account name of the Judgement Debtor with or in the custody of the 13th Garnishee in satisfaction of the sum of N35,000,000 (Thirty Five Million Naira) being Judgement debt due and payable to the Judgement Creditor from the Judgement Debtor or so much thereof as will satisfy the Judgement debt under consent judgment delivered by the Court of Appeal on 29/1/15 in Appeal No. CA/K/76/2012

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ARCH. DEWU MOHAMMED v COL. AHMED YERO (RTD) & ANOR .

The Appellant contended that it disputed liability in the affidavit to show cause and the lower Court erred in making a garnishee order absolute against it in the absence of any counter affidavit controverting the depositions in the affidavit to show cause. On his part, the 1st Respondent maintained that the Appellant was required under S. 83 SCPA to appear before the Court to show cause why the garnishee order nisi should not be made absolute against it and not to deliberately whip up controversies and doubts in order to shield and protect the funds of the judgment debtor in its custody, insisting that the deposition in paragraphs 4 and 5 of the Appellants affidavit to show cause did not constitute a dispute of the Appellants liability to the 2nd Respondent as S. 87 SCPA contemplates a dispute as to whether or not the garnishee is liable to the judgment debtor in the sum sought to be garnished in its custody, and not whether the particulars of the judgment debtor are insufficient to determine his identity.

Now, the chapeau of S. 87 SCPA reads: If

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the Garnishee appears and disputes his liability . The word dispute in this context is a verb and not a noun. As such, the reference in the Appellants Brief to Blacks Law Dictionary (which defines dispute as a noun: A conflict or controversy, esp. one that has given rise to a particular lawsuit) is inapposite. The Chambers 21st Century Dictionary (Revised Edition) defines the verb as: To question or deny the accuracy or validity of (a statement, etc); to quarrel over rights to or possession of something; to argue about something. Thus, a garnishee who questions or denies being indebted to the judgment debtor is said to dispute his liability. In the instant case, by deposing in the affidavit to show cause that a search conducted on its records revealed several customers with names similar to that of the judgment debtor and further particulars such as middle name, specimen signature, photo identification and address are required in view of the multiplicity of names similar to that of the Judgment Debtor and the possibility that the owners of the said accounts may be different from the judgment

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debtor, it seems to me that the Appellant has questioned or denied being indebted to the judgment debtor. What the Appellant is saying in essence is that: Without the further particulars I request of you, I am unable to confirm from my records if the judgment debtor has any account(s) with me out of which any funds can be paid over to you in satisfaction of the judgment debt. To my mind, this constitutes denial of liability within the meaning and intendment of S. 87 SCPA . The 1st Respondents insistence that S. 87 SCPA contemplates a dispute as to whether the garnishee is liable to a judgment debtor in the sum sought to be garnished in its custody and not whether the particulars of a judgment debtor are insufficient to determine his identity seems to me a curious argument. Pray, if the particulars supplied by the judgment creditor or information available to the garnishee are such that the identity of the judgment debtor cannot be readily ascertained, how then can the garnishee confirm whether he has monies standing to the credit of that judgment debtor which can be paid over to the judgment creditor in satisfaction of the judgment

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debt? Especially is this so as the garnishee order nisi served on the Appellant did not contain any account number or other particulars of the judgment debtor with which his account with the garnishee (if any) could have been traced .

The 1st Respondents further submission on the effect of BVN, which was swallowed hook, line and sinker by the lower Court is even curiouser (as Lewis Carrol put it in Alice in Wonderland). Learned counsel for the 1st Respondent/Judgment Creditor argued that BVN settles the issue of identity of bank customers and since the affidavit to show cause did not state that the alleged different accounts with names similar to that of the judgment debtor have different BVNs, the 13th garnishee (Appellant) had failed to adduce sufficient reason to restrain the Court from making the garnishee order absolute. Persuaded by the 1st Respondents submission, the lower Court observed (at pp. 49-50 of the record) that the several names the garnishee adjudged to be similar to that of the judgment debtor were not stated in the affidavit to show cause, and queried rhetorically whether these names have different BVNs

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before proceeding to hold that the garnishee failed to so indicate and that [w]ith the new innovation in the banking system in the country, the same person cannot have different BVN by which process the identity of the customer is known. I must confess that I struggle with the thought process and the ensuing judicial reasoning of the lower Court. Since the 1st Respondent (qua Judgment Creditor) did not provide any BVN and none is contained in the garnishee order nisi served on the Appellant (qua 13th Garnishee), it is difficult in the extreme to appreciate how the judgment debtors identity could be settled by reference to a BVN that was not supplied. Since every account holder has or is expected to have a BVN, it stands to reason that it is if, and only if, the BVN of a particular customer is made available to the bank that his identity can be traced with the aid of that BVN. But where no BVN is supplied as in the instant case, and all the customers of the bank with similar names equally have BVNs, then cadit quaestio! How can BVN settle the issue of identity of any of the customers with similar names? The answer is flying in the wind, and

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I take the considered view that the lower Court ought to have been a lot more circumspect in order to be reasonably assured, nay satisfied, that the Appellant (13th Garnishee) was actually indebted to that particular judgment debtor [i.e. that the judgment debtor maintains an account with the garnishee] before recording a garnishee order absolute.

Whilst the law enjoins a garnishee to make full and frank disclosure of funds of a judgment debtor in his custody, not setting out the different accounts with similar names in the Appellants affidavit to show cause per se does not justify the hasty conclusion reached by the lower Court. This is so because the burden to supply necessary materials showing that the Appellant was indebted to the judgment debtor lies on the 1st Respondent but not the Appellant; and given the confidential nature of the banker-customer relationship, no legal duty is imposed on the Appellant to disclose the identity and other details of its several customers with similar names as the judgment debtor. An analogous scenario arose in ACCESS BANK PLC v. CHIDI OBIEFUNA (2020) LPELR-49855(CA) where the appellant (garnishee)

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requested for the BVN and photograph of the judgment debtor because there were several customers with similar names in its database, but the respondent (judgment creditor) insisted that BVN settled the issue of identity of a bank customer and the garnishee was merely shielding the funds of the judgment debtor in its custody. It was held (per B. M. Ugo, JCA) that the burden of proof, which includes the burden to supply necessary materials showing that the garnishee is indebted to a judgment debtor, rested with the judgment creditor, and that it is only when the judgment creditor discharges that duty by supplying necessary materials such as BVN or photograph to enable the garnishee identify the judgment debtor that the issue of whether the appellant shielded the true state of the said judgment debtor’s account would arise. The Court not only held that a further affidavit of some sort by the respondent (judgment creditor) was expedient if he did not agree with the assertions of the appellant (garnishee) in his affidavit, but described as preposterous the suggestion that the appellant should have produced the photograph and bank details of customers with similar

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names who are entitled to some secrecy in their dealings with the appellant bank, insisting that it was the respondent’s duty to supply the judgment debtors BVN and the lower Court was mistaken to have turned the burden of proof upside down and reasoned that appellant’s should have sorted out the said accounts with BVN. Tracing of accounts through Bank Verification Number (BVN) even by a Bank cannot be done on a void as suggested by the lower Court; it is common knowledge that it is only when a particular customer’s BVN Number is known that anyone interested in knowing his other accounts can trace them . I kowtow. I cannot agree less. I cannot agree more .

As noted in GWEDE v. DELTA STATE HOUSE OF ASSEMBLY & ANOR supra , a garnishee order nisi will not be made absolute where a garnishee shows that he is not holding any money belonging to the judgment debtor, or that money belonging to the judgment debtor in his possession is the subject of litigation or has been assigned to a third party or any other legal and reasonable excuse . The excuse given in the Appellants affidavit to show cause seems to me reasonable and the lower

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Court was patently wrong in recording (rather hastily, I must say) a garnishee order absolute without first being reasonably assured, nay satisfied, that the Appellant was in fact indebted to the judgment debtor. If the lower Court felt that the Appellant (13th garnishee) was playing smart, and I do not think so, it could either have tried any issue or question necessary for determining the garnishees liability, or referred the matter to a referee as was done in the cases of NIGERIA HOTELS LTD v. NZEKWE (1990) 5 NWLR (PT. 149) 187 at 197(CA), FIDELITY BANK PLC v. MR. FRANCIS OKWUOWULU & ANOR (2012) LPELR-8497(CA) and TAMARA NIG. LTD v. NIGERIA POLICE FORCE & 2 ORS (2014) 10 CLRN 112. In a word, the exercise of a modicum of circumspection by the lower Court would have made all the difference and saved the proceedings.

The point was made at the outset that the attractiveness of garnishee proceedings is fast becoming its bane in our jurisprudence. There is a growing tendency to commence garnishee proceedings against all banks licensed by the Central Bank of Nigeria to operate in the country as in the instant case where nineteen banks were

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listed as garnishees; and the deponent of the affidavit in support of the ex parte application merely averred that he was informed by the judgment creditor that the judgment debtor maintains an account with the garnishees to satisfy the judgment sum of N35,000,000 without supplying the number or other details of the account the judgment debtor allegedly maintains with all the garnishees. The reason often advanced for this practice is that the confidential nature of the banker-customer relationship prevents judgment creditors from having ready access to bank details of judgment debtors. Whilst the difficulty of ascertaining the account details of judgment debtors is appreciated, that does not seem to me a valid basis for Courts of law to condone the insidious practice of initiating garnishee proceedings against all banks operating in Nigeria merely on the say-so of a judgment creditor that the judgment debtor maintains an account(s) with the garnishees without providing any basis for that assertion.

The point to underscore is that just as the cause of action accruable to a garnishee in garnishee proceedings is quite

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a limited one which does not permit him to fight the cause of the judgment debtor [see GTB v INNOSON [2018] LPELR-423368(SC)], it equally occurs to me that the right of a judgment creditor to recover a money judgment by means of garnishee proceedings is not at large but one that lies within defined parameters. Indeed, the terrain of garnishee proceedings is not that much loose and free of any duty, rather it is well guarded by some conditions inherent in S. 83(1) of the Sheriffs and Civil Process Act . See ECOBANK v. UDOFIA [2018] LPELR-45164(CA) 1 at 10 per Adah JCA. The section provides thusly:

The Court may, upon the exparte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oral examination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied as to what amount and that any other person is indebted to such debtor and is within the State, order that debts owing from such third person, hereinafter called the garnishee, to

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such debtor shall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment or order together with costs aforesaid (Underlining supplied).

The above provision enjoins the judgment creditor (applicant) or his legal practitioner to inter alia show in the affidavit in support of the ex parte application by which garnishee proceedings are commenced that any other person is indebted to such debtor . To my mind, what this means is that the affidavit must disclose the fact of indebtedness of the third party to the judgment debtor, and not merely that the third party is likely to be indebted. The basic premise of garnishee proceedings is that it can only lie against a debtor to the judgment debtor, hence a judgment creditor has no right whatsoever to proceed against any person who is not shown to be

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indebted to the judgment debtor in the supporting affidavit. As stated hereinbefore, even though garnishee proceedings are a means of enforcing a money judgment, it is a fresh enforcement action, a separate and independent proceeding from the original action that generated the judgment debt and which can be brought in any Court the judgment creditor can ordinarily sue the garnishee, and this need not be the Court that gave the judgment. See Order VIII Rules 3(b) and 9 of the Judgment Enforcement Rules . In the scheme of legal proceedings, the existence of a cause of action is a prelude to every Court action: the very foundation for the writ issued. A claimant without cause of action cannot by any ingenuity sustain the action. See ATTORNEY-GENERAL, ANAMBRA & ORS v. OKAFOR & ORS [1992] 2 NWLR (PT. 224) 296, (1992) LPELR-3156(SC) 1 at 47-48 per Olatawura, JSC. Garnishee proceedings are not an exception. Cause of action is the factual basis that gives rise to an enforceable claim; the wrongful action or inaction on the part of the defendant that donates to the claimant a legal basis for complaint. See THOMAS v. OLUFOSOYE [1986] 1 NWLR (PT. 18) 669 . A

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cause of action must be shown to have arisen at the commencement of the action, not subsequently. In the context of garnishee proceedings, the wrongful action that gives the judgment creditor a basis to sue the third party (i.e. garnishee) is the fact that he is indebted to the judgment debtor. Thus, the judgment creditors cause of action under S. 83(1) SCPA is one that is severely limited. There is no actionable wrong where the garnishee is not indebted to the judgment debtor and the judgment creditor is not at liberty to proceed against a third party (including a bank) that is not shown to be indebted to the judgment debtor. To put it bluntly, a judgment creditor does not have an untrammeled right of action to proceed against any person who catches his fancy: he is only entitled to sue a person indebted to the judgment debtor. Prima facie , suing all banks operating in the country is a clear pointer to the fact that the judgment creditor is unsure of the bank(s) indebted to the judgment debtor and the bank(s) not so indebted. Such an action is a fishing expedition by the judgment creditor initiated in the hope that one or more of

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the banks could be caught by his dragnet. It is hardly necessary to state that this is prone to capricious abuse and ought to be reined in by the eternal vigilance of the Courts.

In this regard, it seems to me that the English practice, as contained in Rule 72.3 of Practice Direction 72 Third Party Debt Orders , offers a useful guide:

Application notice Rule 72.3

1.1 An application for a third party debt order must be made by filing an application notice in Practice Form N349.

1.2 The application notice must contain the following information

(1) the name and address of the judgment debtor;

(2) details of the judgment or order sought to be enforced;

(3) the amount of money remaining due under the judgment or order;

(4) if the judgment debt is payable by instalments, the amount of any instalments which have fallen due and remain unpaid;

(5) the name and address of the third party;

(6) if the third party is a bank or building society

(a) its name and the address of the branch at which the judgment debtor’s account is believed to be held; and

(b) the

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account number; or, if the judgment creditor does not know all or part of this information, that fact;

(7) confirmation that to the best of the judgment creditor’s knowledge or belief the third party

(a) is within the jurisdiction; and

(b) owes money to or holds money to the credit of the judgment debtor;

(8) if the judgment creditor knows or believes that any person other than the judgment debtor has any claim to the money owed by the third party

(a) his name and (if known) his address; and

(b) such information as is known to the judgment creditor about his claim;

(9) details of any other applications for third party debt orders issued by the judgment creditor in respect of the same judgment debt; and

(10) the sources or grounds of the judgment creditor’s knowledge or belief of the matters referred to in (7), (8) and (9).

1.3 The Court will not grant speculative applications for third party debt orders, and will only make an interim third party debt order against a bank or building society if the judgment creditor’s application notice contains evidence to substantiate his belief that the judgment

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debtor has an account with the bank or building society in question.

See also Halsburys Laws of England (4th ed. Reissue), Vol. 17(1), para. 257 as well as Order 51 Rule 2 of the National Industrial Court of Nigeria (Civil Procedure) Rules, 2017 which prescribes the content of an affidavit filed in support of ex parte application for garnishee proceedings.

The case of OCEANIC BANK PLC v OLADEPO supra at 22 – 23 donates the proposition that garnishee proceedings against a bank is not speculative simply because the account number and exact amount [standing] to the credit of the judgment debtor were not stated . But whilst it would seem that S. 83(1) SCPA does not impose a strict obligation to provide the account details of a judgment debtor as a precondition for initiating garnishee proceedings against a bank, the provision enjoins the judgment creditor/applicant or his legal practitioner to show upon affidavit that the third party (bank) is indebted to the judgment debtor. What this means is that the applicant is required to show that the judgment debtor maintains an account with the bank. The point has already been made

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that one can readily appreciate that banker-customer privilege makes it difficult, if not impossible, for a judgment creditor/applicant to ascertain the number and other details of the judgment debtors bank account. Nevertheless, a judgment creditor/applicant should, at the very minimum, show that his judgment debtor maintains an account with a particular bank before naming it as a garnishee. A routine search at the Corporate Affairs Commission (CAC) will disclose the banker(s) of judgment debtors that are companies or other corporate entities required by law to file annual returns. In the case of individuals, basic enquiries in the course of dealings between the parties will reveal their banker(s) in most cases. It seems to me therefore that listing all banks operating in the country as garnishees is a signpost of failure or neglect to satisfy this basic requirement, and the ex parte application for garnishee order nisi ought to be refused; or granted if, and only if, the applicant gives an undertaking as to damages [or to pay costs on full indemnity basis] where it turns out that the judgment debtor does not maintain an account with the garnishees or

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any of them. The legal basis for this is that a garnishee order nisi is a specie of injunctive order made on an ex parte application for which binding case law imposes a duty on the hearing Court to extract an undertaking as to damages (being the quid pro quo offered by the applicant) as a precondition for granting such ex parte applications. See KOTOYE v. CBN [1989] 1 NWLR (PT. 98) 419 at 449-450 per Nnaemeka-Agu JSC, and 456 per Nnamani JSC .

The emerging practice of routinely listing all banks operating in the country as garnishees (as in the instant case) and thereby exposing them to needless expense without the slightest effort to first show the particular bank(s) indebted to the judgment debtor is one that should not be encouraged for its deleterious effect. The far-reaching implications of allowing all banks operating in this country to be dragged to Court willy-nilly to answer to garnishee proceedings at the instance of every litigant who obtains a favourable money judgment from all Courts in Nigeria can only be imagined. It is akin to a scenario in which a claimant who has obtained a favourable money judgment against a defendant

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to whom an unidentified Kaduna-based lawyer is [or likely to be] indebted, takes liberty to initiate garnishee proceedings against all lawyers based in Kaduna in the hope that someone might turn out to be that lawyer. It is as ridiculous as that! The Court, as custodian of the law, has the final say where the interest of justice is at stake and must be acutely aware of the economic impact of judicial decisions. See Shimmon Shereet & Sophie Turenne, Judges On Trial: The Independence and Accountability of the English Judiciary, 2nd ed., (Cambridge University Press, 2013), p. 48 .

Whilst the Courts do not make a practice of depriving a successful litigant of the fruits of his success unless under very special circumstances [see VASWANI TRADING CO v. SAVALAKH & CO (1972) 12 SC 77 and THE ANNOT LYLE (1886) 11 P.D. 114 at 116 per Bowen, LJ] and would readily lend judicial aid in the enforcement of Court judgments, I reckon that this judicial disposition ought to be balanced against the imperative of protecting citizens from being harassed by unprovoked litigation or other Court proceedings initiated without any demonstrable cause

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of action, which is consistent with the Courts bounden duty to weigh the competing rights of parties. The point being made here is that, as a matter of practice, once a garnishee order nisi is issued against all banks upon penalty of the order being made absolute if they fail or neglect to appear before the Court on the return date to show cause, the banks are constrained to engage the services of legal counsel to represent each of them in the proceedings, only for all but one or two of the banks to be routinely discharged at the end of the day for not being indebted to the judgment debtor (which is actually an euphemism for non-disclosure of cause of action against the discharged banks) usually without any form of compensation by way of costs. And even on those rare instances where costs are awarded, the rather frugal attitude of the Courts (which is inconsistent with the principles to be observed in fixing costs as provided in the various rules of Court) only serves to ensure that the amount often awarded [arbitrarily] as costs scarcely makes up for expense incurred by the discharged banks. It seems to me therefore that allowing this unwholesome

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practice to gain traction without any checks is to overstretch the banks unjustifiably by imposing on them the gratuitous burden of defending a deluge of farfetched garnishee proceedings day after day from Court to Court across the entire length and breadth of the country with grave implications for our economy that is already being asphyxiated on many fronts. It must not be!

The inevitable conclusion to which I must come in the appeal at hand is that the deposition in paragraphs 4 and 5 of the Appellants affidavit to show cause (to the effect that a search of the banks records reveal several customers with names similar to that of the judgment debtor and further particulars such as a third name, signature, photo identification and address are required to enable the Appellant confirm whether or not the judgment debtor maintains an account with the Appellant) constitutes disputing of liability and a reasonable excuse within the meaning and intendment of S. 83 SCPA , and also that the question of the identity of a bank customer cannot be resolved by reference to a BVN that was not supplied by the judgment creditor in the first place. The

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lower Court was therefore in error to have recorded a garnishee order absolute against the Appellant without first ensuring that the judgment debtor in fact maintains an account with the Appellant.

I find this appeal eminently meritorious and the garnishee order absolute dated 12/7/2016 will be and is hereby set aside for being perverse. The costs of this appeal are assessed at N150,000.00 in favour of the Appellant against the 1st Respondent.

FATIMA OMORO AKINBAMI, J.C.A. : I have read in draft the lead judgment of my learned brother, Peter Oyinkenimiemi Affen JCA, where the facts and issues in contention have been set out.

I am in agreement with the reasoning and conclusion and adopt the judgment as mine. I have nothing extra to add.

ABUBAKAR MAHMUD TALBA, J.C.A. : I had the privilege of reading in draft the lead Judgment of my learned brother, PETER ONYIKENIMIEMI AFFEN, JCA and I entirely agree with his reasoning and conclusion that the appeal is eminently meritorious. It is settled law that before a trial Court grants an Order absolute, it must ensure that the Judgment debtor in fact maintains an account with the garnishee.

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The trial Court should not rely on speculation but it must satisfy, itself that indeed it is the Judgment debtor who maintains an account with the garnishee. This becomes necessary especially where the deposition in the garnishee’s affidavit to show cause reveals that there are several customers with names similar to that of the judgment debtor. The lower Court was therefore in error to have granted an order absolute against the garnishee/appellant without ensuring that the judgment debtor in fact maintains an account with the Appellant . The appeal succeeds and I abide by the consequential orders in the lead judgment.

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Appearances:

Okitikpi, Esq. For Appellant(s)

Kabir Momoh, Esq. – for 1st Respondent

2nd Respondent absent and unrepresented by counsel For Respondent(s)

Onyekachi Umah, Esq., LL.M, ACIArb(UK)

Onyekachi Umah is an exceptional Legal Practitioner, Arbitrator, Notary Public and Legal Awareness Expert with over a decade of experience in civil law, criminal law and human rights. He holds a Master of Laws; a Master of Business Administration (mini) and he is a doctoral candidate. Mr Umah is the Managing Partner of the law firm of Bezaleel Chambers International (BCI), where he consults and provides legal services to several national and international organisations, including the United Nations. Aside from his very engaging legal practice, Mr Umah runs a legal awareness organisation (Sabi Law Foundation) and he diligently publishes free daily law tips, every day on www.LearnNigerianLaws.com since 2017. He has published over 820 legal articles in diverse areas of law, delivered over 35 public lectures, anchored over 67 law radio/tv shows and supported several legal and developmental projects across Africa. Click to read more.