ZENITH BANK PLC v. OMENAKA & ANOR

CITATION: (2016) LPELR-40327(CA)

In the Court of AppealIn the Yola Judicial Division

Holden at Yola

ON MONDAY, 14TH MARCH, 2016Suit No: CA/YL/108/2015

Before Their Lordships:

TIJJANI ABDULLAHI Justice, Court of AppealJUMMAI HANNATU SANKEY Justice, Court of AppealBIOBELE ABRAHAM GEORGEWILL Justice, Court of Appeal

BetweenZENITH BANK PLC - Appellant(s)

And1. CHIEF GODWIN OMENAKA2. ADAMAWA STATE GOVERNMENT - Respondent(s)

RATIO DECIDENDI

1 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Nature of garnishee proceedings"A Garnishee proceedings is one by which a judgmentcreditor originates a third party proceedings against aperson indebted to the judgment debtor to pay overdirectly to the judgment creditor such money as aredue to the judgment debtor."Per GEORGEWILL, J.C.A.(P. 23, Paras. E-F) - read in context

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2 B A N K I N G L A W - B A N K E R - C U S T O M E RRELATIONSHIP: Nature of a banker/customerrelationship"In law, by the banker/customer relationship, themoney of a customer is in contract and money in thehands of the bank is borrowed from the customer. Assuch, until it has been demanded for by the customerit remains in the custody and control of the bank foruse. The relationship in law between a banker and itscustomer is therefore, that of Debtor and Creditor. SeeYesufu v. African Continental Bank Ltd. (1981) 1 SC 74,where Bello JSC., (as then was later CJN) had @ p. 95explained these principles of banking law and practicethus:"Where a banker credits the current account of itscustomer with a certain sum, the banker becomes adebtor to the customer in that sum; Joachimson v.Swiss Bank Corporation (1921) 3 KB 110. Andconversely when a bank debits the current accounts ofits customer with a certain sum, the customerbecomes a debtor to the bank in that sum; See PagetLaw of banking. 8th Edition 9.84"See also First Bank of Nigeria Ltd & Anor v. MobaFarms Ltd & Ors (2005) 8 NWLR (Pt. 928) 515; FirstInland Bank Plc v. Glory E. Effoing (2010) 16 NWLR (Pt.1218) 199 @ p. 206; Augustine Chigozie Uba v. UnionBank of Nigeria Plc (1995) 7 NWLR (Pt. 405) 72 @ p.72."Per GEORGEWILL, J.C.A. (Pp. 23-24, Paras. F-E) -read in context

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3 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Circumstance where the onus on agarnishee would be discharged"A Garnishee proceeding is thus a procedure legallyapproved by law for enforcing a money judgment bythe seizure or attachment of the debt due and accruingto the judgment debtor which forms part of his moneyin the hands of a third party for attachment. Thereforein law, the onus placed on a Garnishee would only bedischarged where it successfully establishes that theaccount or accounts covered by the Garnishee Ordernisi do not exist in its system or if exist, it is in debtand not in credit or that it has a right of set off or lienwhich are due effective against the customer. See UBNPlc. v. Boney Marcus Industries Ltd. (2005) All FWLR(Pt. 278) 1037 @ pp. 1046-1047. See also Fidelity BankPlc. v. Okwuowulu (2012) LPELR-8497(CA); CitizensInternational Bank v. SCOA (Nig) Ltd. (2006) 18 NWLR(Pt. 1011) 334.In law, it is now well settled beyond any dispute that aGarnishee is entitled to the defense of lien or set off asrightly recognized even by the Court below. A lien is alegal right reserved in a person to retain another'sproperty which is rightly and continuously in hispossession until present and accrued claims of theperson in possession are satisfied. See Afrotec Tech.Serv. (Nig) Ltd. v. Mia & Sons Ltd (2000) 15 NWLR (Pt.692) 739; OAU v. Olanihun (1996) 8 NWLR (Pt. 464)123."Per GEORGEWILL, J.C.A. (Pp. 24-26, Paras. F-A) -read in context

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4 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Distinction between right of lien andright of set off in garnishee proceedings"Now, in law while right of set off may not accrueunless and until the debt had matured for paymentand thus money standing to the credit of a judgmentdebtor would be available to satisfy a judgmentcreditor, the right of lien is not dependent on thematurity of the debt for repayment and thus can beexercised by the bank even before the loan or debt ofthe customer becomes due to protect itself fromsuffering unforeseeable losses should thecircumstances warrant it. See First Inland Bank Plc v.Glory Effiong (supra). In Fidelity Bank Plc v. FrancisOkwuowulu (supra),In Fidelity Bank Plc V. Francis Okwuowulu (supra)thisCourt per Ogunwumiju, JCA had stated thus:"The authorities are of the view that a garnishee isentitled to set-off any debt to him from the judgmentdebtor at the date when the order nisi was servedupon him and the garnishee is equally entitled to acounter claim against? judgment debtor, at any ratewhere it arises out of the same transaction of the debtsought to be attached. See Tapp v. Jones (1974) LR 10QB 591 @ P. 593. See also: Hale v. Victoria PlumbingCo. Ltd (1966) 2 QB 746."Per GEORGEWILL, J.C.A. (Pp.26-27, Paras. B-A) - read in context

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5 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Position of the law as regardsgarnishee proceedings"In considering the question whether or not theAppellant made out or showed cause why theGarnishee Order Nisi ought not to have been madeabsolute by the Court below, I think and deem itapposite to consider the relevant provisions of the lawgoverning Garnishee proceedings and the onus placedon a Garnishee ordered to show cause by a Court. Therelevant legislation is Section 83 of the Sheriffs andCivil Process Act; which succinctly provides thus:"The Court may, upon the ex-parte application of anyperson who is entitled to the benefit of a judgment forthe recovery or payment of money, either before orafter any oral examination of the debtor liable undersuch judgment and upon affidavit by the applicant ofhis legal practitioners that judgment has beenrecovered and that it is still unsatisfied to what amountand that any other person is indebted to such debtorand is within the State, orderhereinafter called the garnishee, to such debtor shallbe attached to satisfy the judgment or order, togetherwith costs of the Garnishee proceedings and by thesame or any subsequent order it may be ordered thatthe garnishee shall appear before the Court to showcause why he should not pay to the person who haveobtained such judgment or order the debt due to fromhim to such debtor or so much thereof as may besufficient to satisfy the judgment or order togetherwith the costs aforesaid."Per GEORGEWILL, J.C.A. (Pp.27-28, Paras. B-C) - read in context

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6 BANKING LAW - CONSOLIDATION OF ACCOUNT:Whether bank can merge different accounts kept by acustomer"In the circumstances in which it is of common groundb e t w e e n t h e p a r t i e s t h a t t h e 2 n dRespondent/Judgment Debtors operates severalaccounts with the Appellant, it is important to bear it inmind that in law unless an account is a trust account,any two or more accounts opened in the name of thesame person can be combined or merged togetherunless there is an agreement to the contrary. See FirstInland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218)99.A banker such as the Appellant is thus in law entitledto combine the several accounts of the 2ndRespondent for the purposes of determining theamount standing either to the credit or debit of thecustomer. See Halsbury's Laws of England Vol. 2, 3rdEdition paragraph 32 at page 172 stated the legalposition thus:"Unless precluded by agreement, express or impliedfrom the course of business, the banker is entitled tocombine different accounts kept by the Customer inhis own rights even though at different branches of thesame bank, and to treat the balance, if any as theamounts real ly standing to his credit ."PerGEORGEWILL, J.C.A. (Pp. 28-29, Paras. C-B) - read incontext

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7 ACTION - DENIAL OF ALLEGATION: How specificallegation of fact in an affidavit must be denied"The law is well settled that specific allegation of factscontained in an affidavit must be specifically denied asgeneral or bare or banal traverse or denial leaves suchallegations of facts as deemed admitted and thusrequiring no further proof.This was what the 1stRespondent simply did through his counsel when theydeposed on his behalf that "I know as a fact that thedepositions contained in paragraphs 5, 6, 7, 8, 9, 10and 11 are not true." In law such general denialamounts to nothing! See Raphael Nwakwo v. JaphetOfomata (2009) 11 NWLR (Pt. 1153) 496, where thisCourt per Sanusi, J.C.A. (as he then was now JSC)stated emphatically thus:"The law is trite and well settled too, that where aparty denies a deposition in an affidavit or pleadings,he must depose to facts which he wants the Court toaccept and not just make a general or sweeping deniallike that as in the instant case."See Thanni v. Saibu (1977) 2 SC 123; Ogunsola v.Usman (2002) 14 NWLR (Pt. 788) 636;Chief Biodun Olujinmi v. Ekiti State House of Assembly& Anor (2009) 11 NWLR (Pt. 1153) 464."PerGEORGEWILL, J.C.A. (Pp. 31-32, Paras. C-B) - read incontext

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8 BANKING LAW - CONSOLIDATION OF ACCOUNT:Whether bank can merge different accounts kept by acustomer"The answer to these divergent contention is onesimply well settled in law and can be found by theprofound statement on the law by this Court in FirstInland Bank Plc. v. Effiong (supra) @ p. 207, this Courtper Aka'ahs JCA (as he then was now JSC.,) had put thisissue in its proper perspective thus:"In the affidavit to show cause why it should not paythe judgment debtor, the Appellant annexed ExhibitsCA1 and CA2 to show that the judgment debtor did nothave any credit balance in appellant bank. Instead itwas owing the bank because of the loans the bank hasadvanced to the judgment debtor. The Court waswrong to conclude that since the loans were secured,the Appellant could not claim a lien over the creditbalance in the judgment debtor's account. As thejudgment debtor owed more than the amount standingto its credit, it was a debtor to the bank and there isnothing to show that the current account the judgmentdebtor maintained with the banks was held in trust foranother person, and so could not be merged with theloan account. Furthermore, there is no argument orfinding that the various loans granted to the judgmentdebtor had been liquidated which left the judgmentdebtor with a credit balance that could be attacheda n d g a r n i s h e d b y t h e j u d g m e n tcreditor/Respondent."Per GEORGEWILL, J.C.A. (Pp.34-35, Paras. D-D) - read in context

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9 PRACTICE AND PROCEDURE - GARNISHEEPROCEEDINGS: Status of a judgment debtor ingarnishee proceedings"My lords, the 2nd Respondent/Judgment Debtor hadnot filed any brief and had also not urged anything atthe hearing of this appeal and that is understandablyso as in law he is but a mere passive or nominal partyin a Garnishee proceeding, which is strictly betweenthe Ganishor/Judgment Creditor and the Garnishee.See Wema Bank v. Brasterm Sterr Nig Ltd. (2012) AllFWLR (Pt. 624) 107 @ pp. 111-112."Per GEORGEWILL,J.C.A. (P. 38, Paras. C-E) - read in context

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BIODELE ABRAHAM GEORGEWILL, J.C.A. (Delivering

the Leading Judgment): This is an appeal against the

decision contained in the ruling of the High Court of

Adamawa State in Suit NO: ADSY/1/2014: Chief Godwin

Omenaka v. Adamawa State Government & Anor., delivered

on 14/10/2015 by Ambrose D. Mammadi J., in which the

Order Nisi made against the Appellant as Garnishee was

made absolute in satisfaction of a judgment awarded in

favor of the 1st Respondent on 10/5/2012 in Suit No:

ADSY/83/2007: Chief Godwin Omenaka v. Yola North

Local Government Council & 4 Ors to the tune of

N101,079,000.00.

The 1st Respondent who was the judgment creditor had by

a Motion Exparte filed on 9/1/2014 sought and obtained the

Oder of the Court below granting a Garnishee Decree Nisi

against the Appellant and the Appellant was ordered to

show cause. The Appellant upon service of the Garnishee

Order Nisi on it, filed an affidavit to show cause why the

Garnishee Order should not be made absolute. The 1st

Respondent joined issue with the Appellant and after

hearing the parties, the Court below held that the Appellant

had failed to show cause why the Garnishee Order Nisi

should not be made

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absolute and proceeded to make the Garnishee Order

absolute against the Appellant. See pages 3-6; 33-47;

48-49; 72-83 and 84-100 of the Record of Appeal.

The Appellant was dissatisfied with the said ruling and had

appealed against it vide a Notice of Appeal filed on

26/10/2015 on two grounds of appeal. The Record of Appeal

was duly transmitted to this Court on 16/11/2015. The

Appellant's brief was duly filed on 23/12/2015. The 1st

Respondent��s brief was duly filed on 10/2/2016. The 2nd

Respondent did not file any brief.

At the hearing of the Appeal on 16/2/2016, A. B.

Babakano, Esq., learned counsel for the Appellant

adopted the Appellant's brief and urged the Court to allow

the appeal and to set aside the ruling and order absolute

made by the Court below and to discharge the Appellant.

On their part, C. O. Ezenwelu Esq., learned Senior

counsel for the 1st Respondent with Uche Nwigwe, Esq.,

adopted the 1st Respondent's brief and urged the Court to

dismiss the appeal for lacking in merit and to affirm the

ruling and order absolute made against the Appellant by

the Court below. M. A. Umar, Esq., Learned State Counsel

1 for the 2nd Respondent who did not file

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any brief told the Court they did not file any brief since

Garnishee proceedings is strictly between the

Garnishor/Creditor and the Garnishee.

At the Court below, the Appellant as Garnishee ordered to

show cause, had filed an affidavit to show cause deposing

inter alia thus:"4. That the order was for the Garnishee

to show cause why a Garnishee order absolute should

not be made attaching that alleged funds or monies

belong to the judgment debtor in custody or

possession of Garnishee in accounts Nos.

6013912703, 6013912022, and 601392006 for the

purpose of satisfying the judgment debt in this matter

and for the cost of the application.

5. That the accounts belonging to the judgment

debtor, Adamawa State Government, which the

Garnishee order Nisi sought to attach are accounts

which has the following balances as at the date the

order Nisi was served on the Garnishee Bank:

i. Account No. 6013912022 (Nuban No. 1011247747)

has a balance of N96,658,991.94 DR.

ii. Account No. 6013922006 (Nuban No. 1011247792)

has a debit balance of N1,566,739.96 DR.

i i i . Account No. 6013912703 (Nuban No.

1 0 1 1 3 2 5 4 6 7 ) h a s a c r e d i t b a l a n c e o f

N3,587,651,297.71 CR.

6. That I also know as a fact

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that the judgment debtor also has a term loan

account No. 3700218383 which has a debit balance of

N11,700,547,558.61 Dr as at the date the Garnishee

was served with the Garnishee order Nisi.

7. That the Garnishee has a lien over the funds

contained in account No. 6013912703 (Nuban No.

10111325467) and same constitutes part of the

security of the said facility granted to judgment

debtor for which the judgment debtor has executed a

letter of set-off. The copy of the letter of set-off is

herewith attached and marked as Exhibit A.

8. That there are no funds belonging to the judgment

debtor available for attachment in satisfaction of the

judgment sum.

9. That the judgment debtor does not have funds with

the Garnishee capable of being attached as the

judgment debtor is currently indebted to the

Garnishee to the tune of N96,658,991.94 Dr in

account No. 6013912022, N1,566,739,971.96 DR in

Accounts No. 0613922006 and N11,700,547,568.61

DR in Account No. 3700218384, i.e. the 2 accounts

which the Garnishee order sought to attach and the

judgment debtor term loan accounts of the judgment

debtor and the other letters through which the

facilities were granted to the judgment

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debtor which are shown to me are herewith attached

as Exhibits B, C, D, E, F and G respectively."

See pages 33 – 35 of the Record.

Amongst the Exhibits place at before the Court below by

the Appellant in support of the affidavit to show cause are

the following documents, namely:

1. A letter dated 20/10/2014 stating inter alia as follows:

The Managing Director,

Zenith Bank Plc,

Plot 84, Ajose Adeogun Street,

Victoria Island.

Lagos.

Dear Sir,

AUTHORITY TO SET-OFF OUTSTANDING BALANCE

ON THE RESTRUCTURED CREDIT FACILITY OF

N12,803,763,500.00 AT MATURITY AGAINST

ADAMAWA STATE SRA ACCOUNT FOR ANY

ACCOUNT MAINTAINED WITH ZENITH BANK PLC.

We hereby authorize your bank to set-off any

outstanding balance on the above stated credit

contained in the offer letter dated August 19th, 2014.

Please accept on behalf of his Excellency Barr. Bala

James Nggilari, our assurance of highest esteem and

considerations." See page 35 of the Record.

2. A letter dated 15/10/2014, stating inter alia as follows:

Office of the Governor

Adamawa State Government

C/o Office of the State Accountant General

AdamawaAdamawa State

Dear Sir

RESTRUCTURE OF CREDIT FACILITY

We are pleased to advise that the Management

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of Zenith Bank Plc, has approved the review of our

earlier office of Credit facility vide letter dated

August 19, 2014 to your State as requested under the

following and conditions:

Lender: Zenith Bank Plc ("Zenith")

Borrower: Adamawa State Government

Type of Facility: Term Loan

Amount: N12,803,763,500.00

Purpose: To re-finance the State's existing obligations

to Zenith.

Disbursement: The facility shall be made available for

drawdown upon satisfactory compliance with the

conditions precedent.

Tenor: Sixty Months.

Conditions Precedent:

10. Receipt of letter of Set-off from Adamawa State

Government authorizing Zenith to Set-off any

outstanding balance of the facility at expiration

against its FAAC Account or any other Accounts

maintained with Zenith.

Other Conditions

3. Zenith Reserves the right to review the terms and

conditions of these facilities from time to time in the

light of changing market conditions and also to

terminate these banking facilities and accelerate the

maturity of your indebtedness based on any adverse,

information threatening the basis of this relationship

or putting the banking facilities at risk of loss and as

a result of any breach of the terms

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and conditions of these facilities. Adamawa StateGovernment shall be notified before any decisions istaken in this respect.4. Zenith Bank reserves the right to security,syndicate or sell its interest in this credit facilitybased on its global risk/liquidity managementobjectives during the period of the facility. See pages41-43 of the Record.3. A letter dated 2/12/2014 stating inter alia as follows:Office of the GovernorAdamawa State GovernmentGovernment House YolaAdamawa StateDear Sir,OFFER OF CREDIT FACILITYWe are pleased to advise that the Management ofZenith Bank Plc has approved a credit facility foryour State as requested under the following termsand conditions:Lender: Zenith Bank Plc ("Zenith")Borrower: Adamawa State GovernmentType of Facility: Agric Term Loan (CACS)Amount: N2,000,000,000.00Purpose: To finance on-lending to medium andsmall scale farmers in the State.Disbursement: Disbursement of this facility issubject to receipt by Zenith of funds from CBNunder the Commercial Agricultural Credit Schemeand compliance with all conditions precedentto draw down.Security 2: Letter of Set-Off from Adamawa StateGovernment.Conditions Precedent10.

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Receipt of Letter of Set-off from Adamawa State

Government authorizing Zenith to set-off any

outstanding balance on the loan at expiration against

any of the State Government Parastatals and Ministry

Accounts with Zenith.

Other conditions

3. Zenith reserves the right to review the terms and

conditions of this facility from time to time in the

light of changing market conditions and also to

terminate this banking facilities accelerate the

maturity of your indebtedness based on any adverse

information the basis of this relationship or putting

the banking facility at risk of loss and as at a result of

any breach of the terms and conditions of this facility.

Adamawa State Government shall be notified of any

decision taken in this regard.

7. Zenith Bank reserves the right to securities

syndicate or sell its interest in this credit facility

based on its global risk/liquidity management

objectives during the period of the facility. See pages

45 – 47 of the Record.

It was on the strength of the affidavit of the Appellant as

Garnishee that the 1st Respondent as Garnishor filed

through his counsel a reply affidavit deposing inter alia

thus:

3. That I know as a fact

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that on17/12/2013, the judgment debtor/applicant

filed a motion ex parte praying the Court to order a

Garnishee order Nisi against the Garnishee the

amount standing in the following account numbers of

the judgment Debtor/Respondent with the Garnishee:

6013912703 (NUBAN No. 1011325467), 60139129022

(NUBAN No. 1011247747) and 6013922006 (NUBAN

No. 1022347792) sufficient to satisfy the judgment

Debt of N101,019,000.00 and a cost of N70,000.00

awarded in suit No. ADSY/83/2007 decided by this

Court.

4. That I have seen and read the Garnishee’s affidavit

29/7/2015 and I know as a fact that the depositions

contained in paragraphs 5, 6, 7, 8, 9, and 11 are not

true.

5. That Exhibit "D" attached to the Garnishee's

affidavit, which is one of the Account numbers the

Applicant is praying the Court to attach has a credit

balance of N3,587,651,297.71 (Three Billion Five

Hundred and Eighty Seven Million, Two Hundred and

Ninety Seven Thousand, Seventy One Kobo) as at the

date the order Nisi was served on the Garnishee bank

and there is no order of the Court or a suit before this

Court restraining its attachment.

6. That Exhibit "F" and "G" show that the Garnishee

and the

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judgment debtor/Respondent are in business, leading

to offering and restructuring of credit facility.

7. That I know as a fact that if the judgment

Creditor/Applicant's judgment sum and cost awarded

are paid through the attachment of account Number

1011325467 it will not prejudiced the Garnishee. See

pages 48-49 of the Record.

My lords, it was on the strength of the above state of

affidavit and documentary evidence of the Appellant and

the 1st Respondent that the Court below had held in its

ruling appealed against by the Appellant inter alia thus:

"From the affidavit evidence of the Garnishee and the

Exhibits with the submission, it is not disputable that

the judgment debtor maintains four accounts with the

Garnishee. These accounts are as follows:

a. Exhibit B - Account No. 6013912022 (NUBAN No.

1011247747) with debit balance of N96,658,991.91

DR;b. Exhibit C - Account No. 6013922006 (NUBAN

No . 1011247792) w i th deb i t ba lance o f

N1,556,739,971.96 DR;c. Exhibit D - Account No

6013912703 (NUBAN No. 1011325467) with credit

balance of N3,587.651,291.71 CR;d. Exhibit E -

Account No. 3700218384 with debit balance of

N1,700,547,558.61 DR …. The total of the sums

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in the Exhibits B, C and E amounts to the sum of

N13,363,946,532.51 DR from the affidavit evidence

the above is the debt owed by the judgment debtor to

the Garnishee after merging the three accounts. The

judgment debtor has a credit balance of the sum of

N3,587,651,291.71 CR. with the Garnishee as per

Exhibit C. … From my reading of the Garnishee

affidavit to show cause i.e. paragraph 6. Account no.

3700218384 is the term loan account with a debit

balance of N11,700,547,568.61 DR. Even though the

Garnishee has not stated in the affidavit how the loan

in account No. 3700218384 "E" was served or

acquired, I am of the opinion that the loan acquired

vide Exhibit "E". I have the opinion because the

Garnishee in paragraph 10 of its affidavit to show

cause stated the accounts of the judgment debtor

which three are in debit and one is credit and how the

facilities were granted but did not tie Exhibits A, F

and G to any particular account… I am also of the

same opinion that from the affidavit, the facility in

Exhibit "C" is the one acquired vide Exhibits G… If my

opinion is correct which I hold is so, then the

garnishee did not help this Court by

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willfully or deliberately refusing to state clearly by

what means the facilities in Exhibit "C" and "F" were

acquired by the judgment debtor…. before I answer

the issue raised, it is clear from the affidavit evidence

and the Exhibits before me that the facility in Exhibit

"C" as acquired or granted to the judgment debtor

vide Exhibit "G" has a tenure or maturity period of 24

months while the facility in Exhibit "E" as acquired or

granted vide Exhibit "F" has a maturity period of 60

months. I accordingly so hold… The question is have

the facilities in Exhibits "C" and "E" which have a life

span or maturity period of 24 months and 60 months

accrued for determination to enable it act as a lien or

set-off? My answer is that they have not matured and

therefore I am of the opinion that they cannot act as

lieu or set-off against the judgment sum of the

judgment creditor. Furthermore, considering the

content of Exhibit "A" in the affidavit filed by the

Garnishee to show cause, can set-off or lien apply

herein against the judgment sum before the maturity

dates or Exhibit "C" as acquired vide Exhibit "G" and

Exhibit "E" as acquired vide Exhibit "F" for the

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purpose of clarity, I reproduce Exhibit "A" of the

garnishee herein…. After reading Exhibit "A"

produced above, I have read Exhibit "E" for which

Exhibit "F" has categorically given the period of

maturity Exhibit "A" provide for set-off at maturity of

Exhibit "E" as acquired vide Exhibit "F". Since Exhibit

"A" in the Garnishee affidavit to show cause

specifically by the judgment debtor can be made on

the date of maturity. I hold that this is a specific

agreement of the judgment debtor and the Garnishee

which cannot be altered before the due date of

maturity of 60 months and 24 months for the purpose

of defeating the judgment sum of the judgment

creditor. I hold that based on the affidavit and Exhibit

"A" in the Garnishee affidavit to show cause no set-off

can be applicable to the accounts in Exhibit D and E

as acquired vide Exhibit "F" and "G" nor any other

account maintained by the judgment debtor with the

Garnishee since they have not matured… From the

affidavit evidence before me and the Exhibits, I am of

the opinion and hold that the Garnishee has not

shown sufficient cause not to make a Garnishee Order

Nisi Absolute. I have also read Exhibit

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"B" which does not indicate when the facility was

acquired and therefore does not indicate any date of

maturity. However, looking at Exhibit "A" I am of the

opinion and hold that the maturity date is the same

date as those of Exhibit "C" and "E", it therefore

follows that the account in Exhibit "B" cannot be sued

as any set-off or lien on the judgment sum of the

agreement creditor before the date of maturity." See

pages 95-100 of the Record.

In the Appellant's brief, two issues were distilled for

determination, namely;

(1) Whether the learned trial judge was right when he

held that the Appellant has not shown sufficient

cause why the Garnishee Order Nisi should not be

made absolute.

(2) Whether the learned trial judge was right when he

held that the Garnishee/Appellant cannot exercise the

right of lien or set off over the funds on the judgment

sum of the Judgment Creditor/1st Respondent before

the date of maturity.

In the 1st Respondent's brief, two issues were also distilled

for determination, namely;

(1) Whether from the totality of the affidavit

evidence, the trial judge was justified to make the

order Nisi absolute?

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(2) Whether the trial judge was wrong to

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have held that the right of him or set off was not

available to the Appellant in the instances of this

case?

I have given due consideration to the facts and

circumstances as can be seen in the printed Record and it

does appear to me that the two issues as distilled by the 1st

Respondent are the apt issues arising for determination in

this appeal and which shall be considered together and

resolved in one fell swoop since the real crux of the issue in

this appeal is simply whether the Court below was right

when it held that the Appellant had not shown cause why

the Garnishee Order Nisi should not be made absolute

against the Appellant? A consideration of these two apt

issues together would in my view invariably involve a

consideration of the two issues as distilled by the Appellant.

I shall therefore proceed to do so anon.

ISSUES NOS: 1 & 2 TAKEN TOGETHER

1: Whether from the totality of the affidavit evidence,

the trial judge was justified to make the order Nisi

absolute?

2: Whether the trial judge was wrong to have held

that the right of him or set off was not available to

the Appellant in the instances of this case?

Learned counsel for the Appellant had

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submitted that from the affidavit evidence adduced before

the Court below, the 2nd Respondent is indebted to the

Appellant to the tune of N96,658.991.94 DR in Account

No.6013912022, the sum of N1,566,739,971.96 DR in

A c c o u n t N o . 6 0 1 3 9 2 2 0 0 6 a n d t h e s u m o f

N11,700,547,568.61 in the term loan account

No.3700218384, which are the 2 other accounts which the

Garnishee Order Nisi sought to be attached and the

judgment debtor term loan account respectively as in

Exhibits A, B, C, D, E, F and G of the Appellant��s affidavit

to show cause.

It was further submitted that the 1st Respondent did not

effectively deny or controvert the facts deposed to in the

Appellant��s affidavit showing cause why the Garnishee

Nisi Order should not be made absolute and contended that

the 1st Respondent was only relying on the fact that one of

the accounts sought to be attached by the Garnishee Nisi

Order, account No. 6013912703 (NUBAN No. 1011325467)

has a credit balance of N3,587,651,291.71 but did not deny

or effectively controvert the facts deposed to by the

Appellant that the 2nd Respondent is also indebted to the

Garnishee to the tune of N96,658,991.94 DR. in account

No.

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6013912023, the sum of N1,566,739,971.96DR in account

No.6013922006, which are the 2 other accounts sought to

be attached by the 1st Respondent.

It was further submitted that the 2nd Respondent is also

i n d e b t e d t o t h e A p p e l l a n t i n t h e s u m o f

N11,700,547,568.61 in the term loan account No.

3700218384 as clearly shown in the Appellant��s affidavit

to show cause together with all the attached Exhibits and

contended that the relationship between a bank and its

customer is a relationship of debtor and creditor and thus

when a bank credits the current account of its customer

with a certain sum, the bank becomes a debtor to the

customers in that sum and conversely when the bank debits

the current account of the customer with a certain sum, the

customer becomes a debtor to the bank in that sum and

unless precluded by agreement express or if it is a trust

account, any two accounts opened in the name of the same

person can be combined or merged together by the bank

for the purposes of ascertaining the credit or debit status of

the customer. Counsel relied on First Inland Bank Plc v.

Effiong (2010) 16 NWLR (Pt. 1218) @ p. 99.

It was also submitted that the Appellant

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is entitled to the defense of lien, which he contends is a

legal right reserved in a person to retain another��s

property which is rightfully and continuously in his

possession until present and accrued claim of the person in

possession are satisfied and can be exercised whether a

right of set off had become matured or not. Counsel relied

on Afrotite Sev. Nig. Ltd V. MIA & Sons Ltd (2000) 5

NWLR (Pt. 692) @ p. 730; OAU v. Olanihan (1996) 8

NWLR (Pt. 464) 123; First Inland Bank v. Glory

Effiong (supra)

Learned counsel for the Appellant further submitted that by

virtue of Exhibits A, B, C, D, E, F and G attached to the

Appellant affidavit to show cause, the Appellant has a lien

over the funds contained in Account No. 6013912703

(NUBAN No. 1011325467) as same constituted part of the

security of the said facility granted to the 2nd Respondent

for which the 2nd Respondent has executed a letter of set-

off and contended that the term loan granted to the 2nd

Respondent has matured by virtue of Exhibit G, which was

for 60 months, the period within which the 2nd Respondent

is expected to liquidate the whole debt based on repayment

of sixty equal and consecutive

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monthly repayment of N311,362,652,10 with effect from

19th August, 2014.

It was also submitted that in law there is a distinction

between the right of lien and set off in that while 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, a set-off on the other

hand is a counter demand generally of a liquidated debt

growing out of an independent transaction for which an

action might be maintained in law. Counsel relied on

Afrote Nigeria Ltd. v. MIA & Sons Ltd (2000) 5 NWLR

(Pt. 692) 730.

It was further submitted that even though the Appellant is

in possession of the money belonging to the 2nd

Respondent, the money or part of it cannot be paid over to

the 1st Respondent because the 2nd respondent is also

indebted to the Appellant and contended that a lien or set

off is a legitimate defense available to every Garnishee

summoned to show cause why the Garnishee Order Nisi

should not be made absolute, provided there is evidence to

show that the judgment debtor is also indebted to the

Garnishee. Counsel

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relied on OAU V. Olanihun (1996) 8 NWLR (Pt. 464)

123; Fidelity Bank Plc v. Francis Okwuowulu (2002)

LPELR (CA); First Inland Bank Plc v. Glory Effiong

(2010) 16 NWLR (Pt. 1218) @ P. 199.

Learned counsel for the Appellant submitted that the Court

below was wrong when it held that the Garnishee/Appellant

cannot exercise the right of lien or set-off over the funds in

its possession before the date of maturity and should pay

over the judgment sum to the 1st Respondent and urged

the Court to allow the appeal and to set aside the ruling of

the Court below and to discharge the Appellant.

On their part, learned counsel for the Respondent had

submitted that the Appellant's affidavit to show cause did

not show sufficient cause that will warrant the Court below

not to make the Garnishee Order Nisi absolute and

contended that the first 3 accounts were attached by the

lower Court, with Exhibit "D" having a credit balance of

N3,587,651,291,71, while the fourth account Exhibit "E"

was only revealed in the Garnishee's affidavit to show

cause and outside Exhibits "B" "C", "D" AND "E"

aforementioned, which were Exhibits A, F and G.

It was further submitted that the deliberate

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refusal of the Appellant to attach Exhibits A, F and G to any

particular account number having stated that they were

offer letters through which the facilities were granted did

not help the Appellant's case and contended a cursory look

at Exhibit "F" shows that it is a restructured credit facility

on term loan, which relates it to Exhibit E while Exhibit G

relates to Exhibit C and thus Exhibit A which is an authority

to set-off outstanding balance on the Restructured Credit

Facility at Maturity against Adamawa State will only come

into effect when the facilities covered by it come into effect

when the facilities covered by Exhibits F and G are

matured.

It was also submitted that the Appellant��s claim of right of

lien or set-off over funds contained in account No.

(NUBAN) 1011325467 was misconceived and untenable

because the authority of set-off in Exhibit A ties the

Appellant's power to exercise right of set-off or lien over

Exhibits C and E granted through Exhibits G and E that

have maturity period of 24 months and 60 months

respectively.

Learned counsel for the 1st Respondent submitted that the

Court below was right in holding that the right of lien or

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set off was not available to the Appellant in that a right of

lien or set-off is only as to accrued interest and not when

the loan is yet to mature as in the instant appeal even

though generally the law is that a Garnishee has a right of

set off or lien but on maturity of the loan as agreed in the

Exhibits relied upon by the Appellant, which findings were

not even appealed against by the Appellant and thus

binding whether rightly or wrongly made by the Court

below. Counsel relied on Onafowokan v. Wema Bank Plc

(2011) ALL FWLR (Pt. 201) 204; Nwaolisah v.

Nwabufoh (2011) ALL FWLR (Pt. 591) 1438.

My lords, the very straight forward and I dare say very

simple issue, but made seemingly difficult by the

submissions of learned counsel for the respective parties, is

whether the Appellant on the strength of its affidavit

together with the annexed documentary Exhibits placed

before the Court below, and forming part of the Record of

Appeal, showed cause why the Garnishee Order Nisi should

not be made absolute by the Court below? In other words

and very simply put: is the Appellant entitled to the defense

of set off and or lien as constituting sufficient cause why

the

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Garnishee Order Nisi ought not to have been made

absolute by the Court below?

I had earlier reproduced in extenso in this judgment the

affidavit of the Appellant and the supporting documents

and also the reply affidavit of the 1st Respondent. The

parties are ad idem to a large extent on some of the crucial

issues in this appeal. There is no dispute that on the

strength of the copious documentary Exhibits placed before

t h e C o u r t b e l o w b y t h e A p p e l l a n t , t h e 2 n d

Respondent/Judgment debtor is a customer to the Appellant

and maintains several accounts with the Appellant. In law,

the Appellant being a Banking Financial Institution, is

clearly in business for the purposes of making profits from

its transactions with its customers and not a father

Christmas and therefore entitled to due repayments of

loans extended to its customers.

A Garnishee proceedings is one by which a judgment

creditor originates a third party proceedings against a

person indebted to the judgment debtor to pay over directly

to the judgment creditor such money as are due to the

judgment debtor.

In law, by the banker/customer relationship, the money of a

customer is in contract and money in the

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hands of the bank is borrowed from the customer. As such,

until it has been demanded for by the customer it remains

in the custody and control of the bank for use. The

relationship in law between a banker and its customer is

therefore, that of Debtor and Creditor. See Yesufu v.

African Continental Bank Ltd. (1981) 1 SC 74, where

Bello JSC., (as then was later CJN) had @ p. 95 explained

these principles of banking law and practice thus:

"Where a banker credits the current account of its

customer with a certain sum, the banker becomes a

debtor to the customer in that sum; Joachimson v.

Swiss Bank Corporation (1921) 3 KB 110. And

conversely when a bank debits the current accounts

of its customer with a certain sum, the customer

becomes a debtor to the bank in that sum; See Paget

Law of banking. 8th Edition 9.84"

See also First Bank of Nigeria Ltd & Anor v. Moba

Farms Ltd & Ors (2005) 8 NWLR (Pt. 928) 515; First

Inland Bank Plc v. Glory E. Effoing (2010) 16 NWLR

(Pt. 1218) 199 @ p. 206; Augustine Chigozie Uba v.

Union Bank of Nigeria Plc (1995) 7 NWLR (Pt. 405)

72 @ p. 72.

A Garnishee proceeding is thus a procedure legally

approved by law for enforcing a

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money judgment by the seizure or attachment of the debt

due and accruing to the judgment debtor which forms part

of his money in the hands of a third party for attachment.

Therefore in law, the onus placed on a Garnishee would

only be discharged where it successfully establishes that

the account or accounts covered by the Garnishee Order

nisi do not exist in its system or if exist, it is in debt and not

in credit or that it has a right of set off or lien which are

due effective against the customer. See UBN Plc. v. Boney

Marcus Industries Ltd. (2005) All FWLR (Pt. 278)

1037 @ pp. 1046-1047. See also Fidelity Bank Plc. v.

Okwuowulu (2012) LPELR-8497(CA); Citizens

International Bank v. SCOA (Nig) Ltd. (2006) 18

NWLR (Pt. 1011) 334.

In law, it is now well settled beyond any dispute that a

Garnishee is entitled to the defense of lien or set off as

rightly recognized even by the Court below. A lien is a legal

right reserved in a person to retain another's property

which is rightly and continuously in his possession until

present and accrued claims of the person in possession are

satisfied. See Afrotec Tech. Serv. (Nig) Ltd. v. Mia &

Sons Ltd (2000) 15 NWLR (Pt.

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692) 739; OAU v. Olanihun (1996) 8 NWLR (Pt. 464)

123.

So the question is whether on the facts as furnished before

the Court below as in the Record, did the Appellant show a

right of set off or lien as would constitute sufficient reason

why the Garnishee Order Nisi ought not to have been made

absolute by the Court below?

Now, in law while right of set off may not accrue unless and

until the debt had matured for payment and thus money

standing to the credit of a judgment debtor would be

available to satisfy a judgment creditor, the right of lien is

not dependent on the maturity of the debt for repayment

and thus can be exercised by the bank even before the loan

or debt of the customer becomes due to protect itself from

suffering unforeseeable losses should the circumstances

warrant it. See First Inland Bank Plc v. Glory Effiong

(supra). In Fidelity Bank Plc v. Francis Okwuowulu

(supra),

In Fidelity Bank Plc V. Francis Okwuowulu (supra)this

Court per Ogunwumiju, JCA had stated thus:

"The authorities are of the view that a garnishee is

entitled to set-off any debt to him from the judgment

debtor at the date when the order nisi was served

upon him and the garnishee is equally entitled to a

counter claim against

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judgment debtor, at any rate where it arises out of the

same transaction of the debt sought to be attached.

See Tapp v. Jones (1974) LR 10 QB 591 @ P. 593. See

also: Hale v. Victoria Plumbing Co. Ltd (1966) 2 QB

746."

In considering the question whether or not the Appellant

made out or showed cause why the Garnishee Order Nisi

ought not to have been made absolute by the Court below, I

think and deem it apposite to consider the relevant

provisions of the law governing Garnishee proceedings and

the onus placed on a Garnishee ordered to show cause by a

Court. The relevant legislation is Section 83 of the

Sheriffs and Civil Process Act; which succinctly provides

thus:

"The Court may, upon the ex-parte 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 of

his legal practitioners that judgment has been

recovered and that it is still unsatisfied 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,

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hereinafter called the garnishee, to such debtor shall

be attached to satisfy the judgment or order, together

with 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 have

obtained such judgment or order the debt due to from

him to such debtor or so much thereof as may be

sufficient to satisfy the judgment or order together

with the costs aforesaid."

In the circumstances in which it is of common ground

between the parties that the 2nd Respondent/Judgment

Debtors operates several accounts with the Appellant, it is

important to bear it in mind that in law unless an account is

a trust account, any two or more accounts opened in the

name of the same person can be combined or merged

together unless there is an agreement to the contrary. See

First Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt.

1218) 99.

A banker such as the Appellant is thus in law entitled to

combine the several accounts of the 2nd Respondent for

the purposes of determining the amount standing either to

the credit or debit of the customer. See Halsbury's Laws

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of England Vol. 2, 3rd Edition paragraph 32 at page

172 stated the legal position thus:

"Unless precluded by agreement, express or implied

from the course of business, the banker is entitled to

combine different accounts kept by the Customer in

his own rights even though at different branches of

the same bank, and to treat the balance, if any as the

amounts really standing to his credit."

My lords, having reiterated the relevant and applicable

principles of law, let me now consider the facts as placed

before the Court below to see whether or not the Court

below was right when it held that though the Appellant

generally has a right of set off and or lien over the funds of

the 2nd Respondent/Judgment debtor in its custody but in

the circumstances of this case those rights were not yet

available to the Appellant since the debts due or loans were

not yet matured for repayment and thus the Appellant did

not show any cause why the Garnishee Order Nisi should

not be made absolute.

In the affidavit to show cause, it was placed before the

Court below that the 2nd Respondent had, in addition to

the only three accounts brought to its attention by the 1st

Respondent in the

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application exparte for Garnishee Order Nisi, a fourth

account of a term loan with a debit balance of

N11,700,547,558.61 and that a combination of the several

accounts of the 2nd Respondent/Judgment debtors would

show readily that the 2nd Respondent/Judgment debtor is

heavily indebted to the Appellant in Exhibits B, C, and E

and thus had no credit to its name that could be paid over

to the 1st Respondent/Judgment creditor in satisfaction of

the judgment debt. In proof of these depositions the

Appellant furnished before the Court below Exhibits B, C,

E, F and G. In Exhibit E alone, the 1st Respondent is shown

to be indebted to the Appel lant in the sum of

N11,700,547,558.61 on Account no. 3700218383, an

amount far in excess of the judgment debt sought to be

r e c o v e r e d f r o m t h e A p p e l l a n t b y t h e 1 s t

Respondent/Judgment Creditor.

In response what did the 1st Respondent say in his reply

affidavit? He authorized his counsel to respond on his

behalf to state that so long as there is standing to the credit

of the 2nd Respondent/Judgment debtor the sum of

N3,587,651,296.71 to its credit in Account no. 1011325467,

it was sufficient to cover the judgment sum and was rightly

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attached in satisfaction thereof, and I may add this is

notwithstanding the several documents showing the high

level of indebtedness of the 2nd Respondent/Judgment

debtor to the Appellant.

So did the 1st Respondent succeed in challenging the

contents of affidavit of the Appellant as placed before the

Court below as to the crucial issue of fact of the heavy

indebtedness of the 2nd Respondent/Judgment debtor to

the Appellant? I think not. The law is well settled that

specific allegation of facts contained in an affidavit must be

specifically denied as general or bare or banal traverse or

denial leaves such allegations of facts as deemed admitted

and thus requiring no further proof. This was what the 1st

Respondent simply did through his counsel when they

deposed on his behalf that "I know as a fact that the

depositions contained in paragraphs 5, 6, 7, 8, 9, 10

and 11 are not true." In law such general denial amounts

to nothing! See Raphael Nwakwo v. Japhet Ofomata

(2009) 11 NWLR (Pt. 1153) 496, where this Court per

Sanusi, J.C.A. (as he then was now JSC) stated emphatically

thus:

"The law is trite and well settled too, that where a

party denies a deposition in an

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affidavit or pleadings, he must depose to facts which

he wants the Court to accept and not just make a

general or sweeping denial like that as in the instant

case."

See Thanni v. Saibu (1977) 2 SC 123; Ogunsola v.

Usman (2002) 14 NWLR (Pt. 788) 636;

Chief Biodun Olujinmi v. Ekiti State House of

Assembly & Anor (2009) 11 NWLR (Pt. 1153) 464.

It follows therefore that since the 1st Respondent had no

answer to the facts as deposed by the Appellant on the

s t a t e o f h e a v y i n d e b t e d n e s s o f t h e 2 n d

Respondent/Judgment debtor to the Appellant, that ought

to have been the end of the matter as a banker to whom a

judgment debtors is as well indebted to has no duty paying

over any money not available to a judgment creditor on

behalf of a judgment debtor also indebted to the bank. In

law, the depositions in the affidavit of the Appellant having

not been countered by the 1st Respondent/Judgment

creditor, those depositions remained unchallenged and

ought to have been acted upon by Court below. See Effang

Effiom Henshaw v. Effang Essien Effanga (2009) 11

NWLR (Pt. 1153) 65. See also Okoebor v. Police

Council (2003) 12 NWLR (Pt. 834) 444; Adeleke v.

Iyanda (2001) 13 NWLR (Pt.

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729) 1

My lords, having held that by Exhibit E, the 2nd

Respondent/Judgment was shown to be heavily indebted to

the Appellant in sums far and above the N3,587,651,291.71

CR in Account No. 6013912703 NUBAN No. 1011325467,

the Court below ought to have held that the Appellant

showed sufficient cause why the Garnishee Order Nisi

Ought not to be made absolute.

However, the view and finding of the Court below was that

since the Exhibit E was the product of a term loan which

maturity period of 60 months was not yet due, the

Appellant cannot rely on the defense of right of set off or

r i g h t o f l i e n o v e r t h e f u n d s o f t h e 2 n d

Respondent/Judgment debtor in its account in credit as in

Exhibit D and therefore made the Garnishee Order Nisi

absolute on that account. Was the Court below right or

wrong in its decision to the above effect?

It has been submitted for the Appellant that in law a bank

has the right to merge several accounts of a customer with

it to determine the credit standing of the customer so long

as the account is not a trust account and there was also no

agreement to the contrary between the parties. It was also

submitted for the Appellant that with the heavy

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indebtedness of the 2nd Respondent to the Appellant as in

Exhibit E, the Appellant has a right of lien on the credit

standing to 2nd Respondent in Exhibit D, notwithstanding

the maturity date of the loan in Exhibit E.

On the other hand, it was submitted for the 1st

Respondent/Judgment Creditor that in so far as the term

loan in Exhibit E was not matured for repayment, the

Appellant has no right of lien over the credit standing to

the 2nd Respondent/Judgment Debtor in Exhibit C, which

was thus available to be attached and that the Garnishee

Order Nisi was thus rightly made absolute by the Court

below.

The answer to these divergent contention is one simply well

settled in law and can be found by the profound statement

on the law by this Court in First Inland Bank Plc. v.

Effiong (supra) @ p. 207, this Court per Aka'ahs JCA (as

he then was now JSC.,) had put this issue in its proper

perspective thus:

"In the affidavit to show cause why it should not pay

the judgment debtor, the Appellant annexed Exhibits

CA1 and CA2 to show that the judgment debtor did

not have any credit balance in appellant bank. Instead

it was owing the bank because of the loans the bank

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has advanced to the judgment debtor. The Courtwas wrong to conclude that since the loans weresecured, the Appellant could not claim a lien overthe credit balance in the judgment debtor'saccount. As the judgment debtor owed more thanthe amount standing to its credit, it was a debtor tothe bank and there is nothing to show that thecurrent account the judgment debtor maintainedwith the banks was held in trust for anotherperson, and so could not be merged with the loanaccount. Furthermore, there is no argument orfinding that the various loans granted to thejudgment debtor had been liquidated which left thejudgment debtor with a credit balance that couldbe attached and garnished by the judgmentcreditor/Respondent."

In my finding therefore, not only has the Appellant theplenitude of right and power in the absence of anyagreement to the contrary to merge all the severalaccounts of the 2nd Respondent/Judgment Debtor inExhibits B, C, D and E to determine the credit or debitstanding of the 2nd Respondent/Judgment debtor, it alsohas in law a lien over the credit balance in Exhibit Dwhich far less than the huge debt of the 2nd

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Respondent/Judgment Debtor in Exhibit E and that the

Appellant's right of lien is alive, active and effective and not

dependent on the maturity of term loan being not a claim in

set off which ordinarily would not arise until the due

maturity date for repayment of a loan. See Afrotec Tech.

Serv. (Nig) Ltd. v. Mia & Sons Ltd (2000) 15 NWLR

(Pt. 692) 739. See also OAU v. Olanihun (1996) 8

NWLR (Pt. 464) 123; UBN Plc. v. Boney Marcus

Industries Ltd. (2005) All FWLR (Pt. 278) 1037 @ pp.

1046-1047; Fidelity Bank Plc. v. Okwuowulu (2012)

LPELR-8497(CA); Citizens International Bank v. SCOA

(Nig) Ltd. (2006) 18 NWLR (Pt. 1011) 334; First

Inland Bank Plc v. Effiong (2010) 16 NWLR (Pt. 1218)

99.

The Court below appears to have been too fixated on the

credit in Exhibit D and fell into grave error when it held

that the Appellant was not entitle to a right of lien over the

credit in Exhibit D when it was shown clearly the

uncontroverted heavy indebtedness of the 2nd

Respondent/Judgment Debtor to the Appellant in Exhibit E.

The Court in its bid to justify its position even veered off

into so much speculation of the affidavit evidence of the

Appellant, to which there was

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n o t h i n g p u t i n c h a l l e n g e o f i t b y t h e 1 s t

Respondent/Judgment Creditor when it stated inter alia

thus:

"I have also read Exhibit "B" which does not indicate

when the facility was acquired and therefore does not

indicate any date of maturity. However, looking at

Exhibit "A" I am of the opinion and hold that the

maturity date is the same date as those of Exhibit "C"

and "E", it therefore follows that the account in

Exhibit "B" cannot be sued as any set-off or lien on

the judgment sum of the agreement creditor before

the date of maturity."

See page 100 of the Record.

I therefore cannot but agree with the apt and unassailable

submissions of learned counsel for the Appellant that the

Court below ought to have averted its mind sufficiently to

the largely unchallenged affidavit evidence of the Appellant

and had it done so it would not had come to the perverse

finding as it did that the Appellant did not show sufficient

cause why the Garnishee Order Nisi ought not to have been

made absolute. Consequently, it is my view and I so hold

that the evaluation of the evidence by the Court below was

skewed and deficient as clearly the unchallenged evidence

before it was most

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inadequately considered by it. If the learned trial judge had

properly considered the unchallenged evidence before him

in the light of the relevant and applicable principles of law

and without jettisoning in a hurry the decision in

Afrotec Services Nig. Ltd v. MIA and Sons Ltd (supra)

and OAU v. Olanihun (supra) as he did at page 97 of the

Record of Appeal, he should not have arrived at the

perverse conclusion he did. See H. S. Engineering Ltd v.

S. A. Yakubu Nig. Ltd. (2009) 10 NWLR (Pt. 1149)

416. See also Ajomale v. Yaduat (No. 2) (1991) 5

NWLR (Pt. 191) 257 @ pp. 282-283.

My lords, the 2nd Respondent/Judgment Debtor had not

filed any brief and had also not urged anything at the

hearing of this appeal and that is understandably so as in

law he is but a mere passive or nominal party in a

Garnishee proceeding, which is strictly between the

Ganishor/Judgment Creditor and the Garnishee. See Wema

Bank v. Brasterm Sterr Nig Ltd. (2012) All FWLR (Pt.

624) 107 @ pp. 111-112.

In the light of my findings above, I have no difficulty

resolving the first issue for determination in the negative

against the 1st Respondent in favor of the Appellant,

resolving the second

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issue if the positive in favor of the Appellant against the 1st

Respondent. I hold firmly therefore, that the appeal has

merit and ought to be allowed. It is hereby allowed.

In the result, the ruling of the High Court of Adamawa

State in Suit No. ADSY/1/2014: Chief Godwin Omenaka v.

Adamawa State Government & Anor delivered on

14/10/2015 by Ambrose D. Mammadi J., wherein it made a

Garnishee Order Absolute against the Appellant is hereby

set aside. The Appellant/Garnishee is hereby discharged.

There shall be no order as to cost.

TIJJANI ABDULLAHI, J.C.A.: I have had the advantage of

reading in draft the lead Judgment just delivered by my

learned brother Biobele Abraham Georgewill, J.C.A.

His Lordship characteristically dealt with all the live issues

that call for determination in this appeal and rightly

resolved same in favour of the Appellant. I too allow the

appeal and abide by all the consequential orders therein

contained.

JUMMAI HANNATU SANEKY, J.C.A.: I agree.

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