Need for a Garnishee to Produce the Statement of Account of Judgment Debtor When Showing Cause in a Garnishee Proceeding

CASE TITLE:                FBN PLC v. YEGWA & ORS (2022) LPELR-59630(SC)

JUDGMENT DATE:     10TH JUNE, 2022

JUSTICES:                     KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC

                                       JOHN INYANG OKORO, JSC

                                       UWANI MUSA ABBA AJI, JSC

                                       IBRAHIM MOHAMMED MUSA SAULAWA, JSC

                                       TIJJANI ABUBAKAR, JSC

PRACTICE AREA:          GARNISHEE PROCEEDINGS

FACTS:

The 1st Respondent was compensated in damages by the trial Court for the breach of his fundamental rights by the 2nd and 3rd Respondents, in the sum of N20,000,000 and cost of N50,000 against the judgment debtors, the 2nd and 3rd Respondents. On the application of the 1st Respondent/Judgment Creditor to the trial Court, a garnishee order nisi attaching the said N20,050,981.14, standing to the credit of the 2nd and 3rd Respondents in their current account with the Appellant was issued. The Appellant filed its affidavit to show cause admitting it had money of the judgment debtors in its custody and also that the said account has been attached by garnishee orders of other Courts but did not explain the breakdown of how those debts were settled among the several garnishee’s relevant statements of account. Further, it did not exhibit the statement of account in respect of account No. 2006404147, with a standing balance of N158,016,450.00. Consequently, the garnishee order nisi was made absolute.

Dissatisfied, the Appellant appealed to the Court of Appeal. The Court of Appeal however affirmed the ruling of the trial Court.

Still dissatisfied, the Appellant further appealed to the Supreme Court.

ISSUES FOR DETERMINATION:

The Court determined the appeal on the sole issue:

“Whether in the light of the documentary and affidavit evidence placed before the trial Court in this appeal, the lower Court was right to hold that the failure of the Appellant to annex the statement of account no. 2006404147 of the 2nd Respondent herein to its affidavit to show cause is enough to warrant a garnishee order nisi to be made absolute in the garnishee proceedings and thereby affirmed the ruling of the trial Court delivered on 5th December, 2014.”

COUNSEL SUBMISSION

The learned counsel for the Appellant submitted that the failure by the lower Court to consider Exhibits A-G, being enrolment orders of the Federal High Court, Abuja, whereat the accounts of the 2nd and 3rd Respondents had been attached, amounts to a violation of the right to a fair hearing of the Appellant. That a decision that infringes on the right to a fair hearing is nullity. He cited in support LAWARI FURNITURE & BATHS LTD V. FEDERAL REPUBLIC OF NIGERIA (2019) 9 NWLR (PT. 1677) AT 283. He further submitted that if the said Exhibits were considered, the lower Court would have realized that the Court orders were attached to the Appellant’s affidavit to show cause.

In response, the counsel to the Respondents submitted that the garnishee affidavit must establish that he is in possession of the money of the judgment debtor, that the money of the judgment debtor under his custody is under a lien or attachment or state the balance in the accounts. He cited the case of CITIZENS INTERNATIONAL BANK LTD V. SCOA NIGERIA LTD (2006) LPELR-5509. He further submitted that while the Appellant annexed both the order of Court and the statement of accounts in respect of other accounts in the affidavit, it deliberately withheld the statement of account in respect of account no: 2006404147 after admitting that the said account has the huge balance sum of N158,016,450.00 in the affidavit to show cause.

DECISION/HELD:

In conclusion, the appeal failed and was dismissed.

RATIO:

PRACTICE AND PROCEDURE- GARNISHEE PROCEEDINGS: Need for a garnishee to produce the statement of account of judgment debtor when showing cause in a garnishee proceeding; whether an enrollment order suffices

“​It is true that the Appellant attached the enrolled order to show that it did not have the money of the judgment debtor. I must emphasize here that the affidavit to show cause is heavier and weightier than what the Appellant had done. Although documents are vital and material to prove a fact, they must nonetheless not be dumped in the Court. Besides, an enrolled order cannot be used by a garnishee to show cause that it does not have the money of the judgment debtor. An enrolled order is not a document that emanated from the Appellant. Why should the Appellant rely on it to show cause that it did not have the money of the judgment debtor? The Appellant as garnishee should be and ought to have generated a statement of account from the said account No. 2006404147. The statement of account no. 2006404147 would have been the best evidence to prove or disprove whether the judgment debtor has sufficient or insufficient money or balance with the Appellant. To withhold that or fail to produce it, is to withhold evidence which must work against the Appellant/Garnishee.

​It is trite that documents apart from what they contain, do not speak.

The fact that a document has been admitted in evidence from the bar or by consent of parties does not necessarily mean that significant weight or any weight at all, should automatically be attached to it without further proof. It is the duty of the party tendering documents to relate each document tendered to that part of the case he intends to prove. In OBASI BROTHERS MERCHANT CO. LTD V. MERCHANT BANK OF AFRICA SECURITIES LTD (2005) ALL FWLR (PT. 261) 216, (2005) 2 SC (PT. 1) 51 AT 68, it was held that the position of the law on dumping of documents on Courts is that the party is under an obligation to tie his documents to the facts or evidence or admitted facts in the open Court and not through counsel’s oral or written address. See also Per PETER-ODILI, JSC, in MAKU V. AL-MAKURA & ORS (2016) LPELR-48123(SC) (PP. 35-41 PARAS. D).

The best way and method for a bank “showing cause” that it does not have the money of a party in its custody is by display or demonstration of the statement of account. In fact, the enrolled orders are not documents of the bank but of the Court. Therefore, the Appellant cannot use it to show cause that it did not have the money of the judgment debtor or why the said account should not be garnished. Why did the Appellant not exhibit the statement of account No. 2006404147? It must be hiding something from the Court. In truth, no Court should and ought to rely on such bogus claim of a financial institution not dealing with a statement of account but enrolled Court order. I equally advise that Courts should not and cannot rely on its enrolled order from a bank to prove the liability or otherwise of that bank to a judgment debtor.

The lower Court affirmed the trial Court’s decision that made the order nisi absolute when it held on page 267 of the record that, “…the Appellant deposed to the fact that it had insufficient funds in Account No: 2006404147, due to the fact that the funds in the said account had been attached by other Court orders. It however failed to furnish this Court, as well as the trial Court with evidence of such averments. The Appellant who is alleging that the funds in Account No: 2006404147 has been attached bears the burden to prove that fact, as mere averments will not avail him.” I equally affirm the lower Court’s decision that the Appellant dodged, evaded or hid crucial evidence of disclosing the status and amount standing in Account No: 2006404147. This cannot amount to “showing cause” in the real sense of it.

The Appellant strongly argued that the failure by the lower Court to consider Exhibits A-G, being enrolment orders of the Federal High Court, Abuja, whereat the accounts of the 2nd and 3rd Respondents had been attached, amounts to a violation of the right to a fair hearing of the Appellant. This is but a fallacy. The lower Court duly considered holistically the case of the Appellant and concluded that “the failure of the Appellant to annex the Statement of Account in respect of Account No: 2006404147 is enough to warrant an order absolute by the trial Court and this did not occasion a miscarriage of justice. It was not bound to look into documents dumped on it without being linked to the relevant portion of the case. In fact, I stamp the decision that non-annexure of a statement of account in a garnishee proceeding of this nature is fatal to the case of the garnishee and the judgment debtor. The Appellant must bear the brunt of its gimmicks.” Per AJI, J.C.A.