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FIDELITY BANK v. ONWUKA
CITATION: (2017) LPELR-42839(CA)
In the Court of AppealIn the Enugu Judicial Division
Holden at Enugu
ON THURSDAY, 4TH MAY, 2017Suit No: CA/E/661/2013
Before Their Lordships:
HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealJOSEPH TINE TUR Justice, Court of AppealMISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal
BetweenFIDELITY BANK PLC - Appellant(s)
AndCHIEF EMMANUEL EZE ONWUKA - Respondent(s)
RATIO DECIDENDI1. BANKING LAW - DUTY OF A BANK: General rule as to the duty of confidentiality a bank owes its customers and its exceptions
"It is beyond controversy that one of the principal duties of a banker to its customer is to maintain a complete secrecy/confidentiality of the information about a customer's account fromthe day the account is closed and is no longer operated. It is one of the implied terms of contract between the customer and the banker which is not restricted to the account alone but alsoto any other information which comes to the knowledge of the banker about the customer in the course of their contractual relationship. However the duty of the banker to maintainsecrecy/confidentiality of the status of the account and any other information relating thereto is not absolute. It is a qualified duty. In other words, it is subject to a number of exceptionswhich were established by the English case of TOURNIER V. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND (1924) 1 KB 461 AT 472 as follows:(a) "Where disclosure is under compulsion of law.(b) Where there is a duty to the public to disclose.(c) Where the interests of the bank require disclosure.(d) Where the disclosure is made by express or implied consent of the customer"These exceptions which are referred to as Tournier's principles still holds good today as they have been confirmed in several other cases. See TURNER V. ROYAL BANK OF SCOTLAND PLC(1999) LLOYD'S LAW REP. BANKING 231 AT 234, CHRISTOFI V. BARCLAYS BANK PLC (2000) 1 WLR 937 AT 946, OCEANIC BANK PLC VS. OLADAPO (2012) LPELR- 19670. We are concernedhere with the first exception. The banker would be justified and is in fact under a duty to disclose information relating to a customer's account where the law or Statute requires the bankerto so do. Disclosure under compulsion of the law is not limited to a situation where a Statute requires the bank to disclose information about a customer's account, it extends to an order ofCourt to disclose the state of a customer's account, the banker is bound to disclose the state of the customer's accounts. In BARCLAYS BANK PLC V. TAYLOR (1989) 3 ALL ER. 563, it wascontended that a banker's duty of secrecy/confidentiality included the duty to resist any order made by a lawful authority to look into the affairs of the customer and the bank was under aduty to inform the customer about the order. The English Court rejected that contention on the ground that such duty cannot be implied into the banker and customer relationship. See alsoROBERTSON V. CANADIAN IMPERIAL BANK OF COMMERCE (1995) 1 ALL ER 824. The argument of the appellant's counsel that a disclosure of all the account details of the judgment debtorwould be a breach of its duty of secrecy/confidentiality must be rejected. A banker has no option than to disclose particulars of its customer's accounts when it is compelled to do so by theCourt.Reliance of the appellant on lack of specific account details must also be rejected because the nature, number and the amount of money standing to the credit of the judgment debtor in itsaccount with the appellant are matters within the knowledge of the appellant which must be disclosed on the order of Court to enable the Court to determine whether or not the judgmentdebtor has money in the custody of the garnishee and whether such money is sufficient to satisfy the judgment debt. That was the position of this Court in OCEANIC BANK PLC VS.OLADAPO (SUPRA) and it remains unchanged."Per BOLAJI-YUSUFF, J.C.A. (Pp. 48-51, Paras. E-E) - read in context
(201
7) LP
ELR-42
839(
CA)
2. BANKING LAW - BANKER-CUSTOMER RELATIONSHIP: Nature of a banker/customer relationship"A bank is a debtor to its customer. In The Bankers' Liability, Revised edition, 2014 by Nkiru-Nzegwu Danjuma appears the following passage at pages 108 to 109:"As regards money deposited by the customer in an account with the banker, the nature of the banker and customer relationship is that of contract of debtor and creditor. The positionbecomes clearer when the customer asks for his money. As a result of an implied undertaking by the banker to repay the customer all or part of such deposit, the banker is a debtor for anamount deposited. If a valid repayment demand of the customer is not met by the banker, the customer may bring an action against it for breach of contract. The action will be against thebank and not against the bank manager. In Osawaye vs. National Bank of Nigeria Ltd. (1974) NCCR 474 the debtor and creditor relationship was restated thus:"The relationship between a banker and customer is one of debtor and creditor with the additional feature that the banker is only liable to repay the customer on payment beingdemanded. There is no obligation on the part of the banker or debtor to seek out his creditor, the customer and pay him: obligation is only to pay the customer or some person nominatedby the customer, when the customer makes a demand or gives a direction for payment."It is the receipt of money either from or on account of its customer that constitutes a banker into debtor of the customer. Thus, when a banker credits the account of a customer with acertain sum of money, the banker becomes a debtor to the customer to the extent of the credit. It is to be noted that the ordinary customer rank as an unsecured creditor in the liquidationof the bank.The concept of debtor and creditor in the banker and customer relationship are not static. The banker may in certain cases become the creditor, while the customer assumes the position ofa debtor. For instance, where a banker grants overdrafts to its customer and debits the customer's account with sum or value of the overdraft, the customer becomes a debtor to thebanker to an amount equal to the credit. Accordingly, after the reconciliation of the banker and customer's account, which party is the creditor, can sue if demand for payment is notcomplied with. The Supreme Court in Yesufu vs. African Continental Bank (supra) affirmed this legal position."Per TUR, J.C.A. (Pp. 39-41, Paras. E-F) - read in context
3. BANKING LAW - DUTY OF A BANK: General rule as to the duty of confidentiality a bank owes its customers and its exceptions"Appellant's counsel argued strenuously that without the account number of the judgment debtor, to reveal all account details of the judgment debtor amounts to a usurpation of thecontractual duty of care owed the judgment debtor by the Appellant and that the Appellant owes the judgment debtor a contractual duty of care and security of its account position.This argument of counsel is misguided. Mbaba JCA in Oceanic Bank Plc v. Oladepo (2012) LPELR-19670 rightly put the position of this Court as follows:"I have already stated in this judgment that the relevant particulars required by Section 83(1) of the Sherriff and Civil Process Act, for the purpose of garnishee proceedings, had beensatisfied by the 1st Respondent and that the Application at the lower Court was not speculative, simply because the account number and the exact amount to the credit of the judgmentDebtor were not stated by the 1st Respondent. Of course, the information as to the account number and the exact amount in the account, were information within the exclusive knowledgeof the Appellant and the 2nd Respondent, and by banking confidentialities, division of such information is not permitted to a 3rd party. The 1st Respondent was therefore not expected tohave such detail."Counsel's reliance on Emmanuel Agbanelo vs. Union Bank of Nigeria Ltd (Supra) is misconceived. In that case, the Appellant operated a current account in the name and style of EPACO(Nigeria) Marketing Company with one of the Respondent's branches in Warri. On the instruction of the Appellant, the Respondent issued a bank draft in favour of the manufacturer'spayable at the Respondent's branch in Surulere. Upon presentation of the draft by the manufacturers for payment, it was returned unpaid and endorsed '1st signature irregular'. Claimingthat these words endorsed on the draft were defamatory of him and that the draft was negligently refused, the Appellant instituted an action at the High Court and claimed damages.Upon appeal to the Supreme Court after the trial Court and the Court of Appeal decided against the Appellant, the Supreme Court held that a bank has a duty to a person on whose requestit has agreed to issue a draft to issue and honour such draft. In the discharge of that duty, it must show care to ensure that the banker's draft is properly issued and honoured. TheSupreme Court held that from the facts of the case, it was clear that the Respondent was in breach of the duty of reasonable care and skill it owed to the Appellant.This has nothing to do with the instant case. The duty of confidentiality owed a customer is certainly subject to an order of Court. It is firmly settled that an order of Court must be obeyeduntil such a time that the order is set aside.There is no doubt that a bank owes its customers a legal duty of confidentiality not to disclose information to third parties, a breach of which could give rise to liability in damages. Thisduty arises between a bank and its customer as soon as an account is opened and as a matter of fact, it continues even after the termination of the banker/customer relationship. Allinformation which include details of customers' accounts, their names and addresses obtained by virtue of the banker/customer relationship are covered by the duty of confidentiality andmust be protected from unauthorized access by a third party.However, there are exceptions to this duty of confidentiality owed a customer by the bank. This was ably laid down in the Locus classicus case of Tournier V. National Prudential Bank ofEngland (1923) All ER 550, (1924) 1 KB 461.The English Court held as follows:"In my opinion it is necessary in a case like the present to direct the jury. What are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation ofbanker and customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsionby law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of thecustomer."The Code of Banking Practice produced by the General Assembly of Bank Chief Executives under the auspices of The Chartered Institute of Bankers of Nigeria has incorporated theseexceptions in Article 7 thereof. It is as follows:7.1. Banks will observe a strict duty of confidentiality about their customers (and former customers') affairs and will not disclose details of customers' accounts or their names andaddresses to any third party, including other companies in the same group, other than in the four exceptional cases permitted by the law, namely:7.1.1 Where a bank is legally compelled to do so;7.1.2 Where there is a duty to the public to disclose;7.1.3 Where the interests of the bank require disclosure; and7.1.4 Where disclosure is made at the request or with the consent (expressed or implied) of the customer.7.2 Banks will not use exception 7.1.3 above to justify the disclosure for marketing purposes of details of customers' accounts or their names and addresses to any third party, includingother companies within the same group.7.3 All banks should insist on their staff signing a 'Declaration of Secrecy' to guarantee the confidentiality of customer information.See also UBA V. CAC & Ors. (2016) LPELR-40569(CA). This Court held that the Appellant cannot hide behind the confidentiality veil to attempt to frustrate a legitimate exercise of thestatutory power granted to an agency or person under the law. It was held that confidential client information may be disclosed under Section 317 CAMA as well as the exercise of theCommission's general power to require provision of information and documents in discharging its functions pursuant to Section 7 of CAMA.In other words, one of the exceptions to the duty of confidentiality owed a customer by the bank is where there is a Court order compelling the disclosure of the account details or any otherinformation of a customer. Such Court order obviates the liability that a bank would ordinarily incur in the event of a breach of the duty of confidentiality. An Order Nisi is no less an order ofCourt and the Appellant is bound by it.At page 164 of the record, the trial Court held as follows:"The Government of Anambra State is known by everybody. No other institution is called Anambra State Government. The order nisi was directed to it. I therefore hold that the nameGovernment of Anambra State is sufficient enough for the 3rd Garnishee to act and obey the order nisi by furnishing the amount in the various accounts maintained by Government ofAnambra State."I agree with the learned trial judge that the Government of Anambra State is known by everybody as no other institution or body can be known as and called Anambra State Government. Itis an accepted matter of public knowledge of which this Court rightly takes judicial notice that Anambra State Government, being a juristic person duly recognized by the 1999 Constitutionis the only one capable of operating an account with the name Anambra State Government. This is a notorious fact which requires no proof.The law does not prohibit a judgment creditor who does not have the account numbers of a judgment debtor from instituting garnishee proceedings against a bank in whose custody themonies of a judgment debtor resides. Counsel for the Appellant made heavy weather of this issue and relied on Sections 83 & 87 in so doing. I have read the provisions and they aregenerously quoted in this judgment, I see nothing to support the argument of counsel in that regard.That was the point made by Mbaba JCA in Oceanic Bank v. Oladepo (Supra) to the effect that the Bank would not have disclosed to the Respondent the details of the accounts of thejudgment debtor. Only the Court can command that confidential information which it has done in this case."Per OGUNWUMIJU, J.C.A. (Pp. 15-22, Paras. A-A) - read in context
4. JUDGMENT AND ORDER - ORDER OF GARNISHEE: Implication of a garnishee order nisi"With the greatest respect, it is clear that there is an abysmal lack of understanding of the garnishee proceedings by learned Appellant's counsel.The order of Court was not an order absolute as counsel for the Appellant contends. While the other two garnishees (Access Bank Plc. and Diamond Bank Plc.) in obedience to the Courtorder, filed affidavits disclosing the accounts of the judgment debtor with them to show cause why they should not satisfy the judgment debt, the Appellant blatantly refused and resortedto legal games after the Order Nisi was served on it.?In fact, the Appellant submitted at paragraph 5.11 of the Appellant's Brief that Anambra State Government through its various Ministries and Departments keeps several accounts with thebanks and without specific account particulars, certain accounts 'may be wrongly attached with the concomitant dangerous effect'. In one breath, the Appellant claims it could not conducta search because there was not enough particulars, on another, the Appellant admits that the judgment debtor operates several accounts with the Appellant but the 'dangerous effect' ofcomplying with the order of Court prevents the Appellant from so doing. That is absolutely unacceptable.It has been reiterated by the Courts that it is not the duty or business of a garnishee to play the role of a defender or advocate for a judgment debtor by attempting to protect the money ofthe judgment debtor in its custody. By refusing to disclose the accounts of the judgment debtor, it is clear to me that the Appellant is doing its best to disobey an order of Court.?In sum, the order of Court appealed against is not an order absolute, it is an order mandating the Appellant to furnish the Court with the accounts operated by the judgment debtor with theAppellant. It does not automatically transmit to an order of Court attaching the funds for execution as it is under an order absolute. What it is, is an attempt by the Court to ascertainwhether such funds at the disposal of the Appellant belonging to the judgment debtor can satisfy the judgment debt which is the essence of the order nisi for the Appellant to showcause."Per OGUNWUMIJU, J.C.A. (Pp. 22-24, Paras. A-A) - read in context
5. JUDGMENT AND ORDER - JUDGMENT OF COURT: Proper tag to be given to determinations of the Supreme Court and the Court of Appeal"The legislative intention is that any determination by a Justice of the Supreme Court or the Court of Appeal is an "opinion" or a "decision." This is provided in Sections 294(2)-(4) and 318(1)of the Constitution of the Federal Republic of Nigeria, 1999 altered. The provisions are couched as follows:"(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice whodelivers a written opinion:Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or readby any other Justice whether or not he was present at the hearing.(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.(4) For the purpose of delivering its decision under this Section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sitsfor that purpose.xxxxxxxxxxxxxxx318(1) "Decision" means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation."Per TUR, J.C.A. (Pp.24-25, Paras. D-E) - read in context
(201
7) LP
ELR-42
839(
CA)
6. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Nature of garnishee proceedings"It is beyond doubt that one of the methods by which liquidated money judgments can be enforced is by way of garnishee proceedings. Garnishee proceedings is defined in Black's LawDictionary as follows:A judicial proceeding in which a creditor (or potential creditor) asks the Court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of thedebtor's property (such as wages or bank accounts) held by that third party.Part V- Attachment of debts by Garnishee Order is the appropriate part of the Sheriffs and Civil Process Act which regulates this process. I will set out the relevant provisions necessary todetermine the issue under consideration. S. 83 provides as follows:83(1). 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 oralexamination 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 and towhat amount and that any other person is indebted to such debtor and is within the State, order the debts owing from such third person, hereinafter called the garnishee, to such debtorshall 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 garnisheeshall 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 there of asmay be sufficient to satisfy the judgment or order together with costs aforesaid.83(2). At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.S. 87 also provides as follows: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 hisliability 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.A garnishee proceeding can be described in two stages; the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in Court on a specified date toshow cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed the judgment debtor. This is usually done ex parte and limitedto the judgment creditor and the Court.The second stage is where on the return date the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the Court may, subject tocertain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, orso much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor,judgment creditor and the Garnishee. This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi bedischarged for one cause or the other as shown by any of the parties, particularly the garnishee. This is because the garnishee may dispute his liability to pay the debt. He will appear inCourt on the return date and dispute his liability by denying indebtedness to the judgment debtor.There is no doubt that a garnishee proceeding is a means of collecting a monetary judgment against a judgment debtor by ordering a third party (the garnishee) to pay money, otherwiseowed to the judgment debtor, directly to the judgment creditor. In UBN Plc. V. Boney Marcus Industries Ltd. & Ors. (2005) All FWLR (Pt.278) 1037 at 1046, garnishee proceeding wasdefined as a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available inexecution. It is in the hands of a third party whereby, the Court order is required to direct the third party to pay directly to the judgment creditor.By the Judgment Enforcement Rules, where any bank, in custody of the monies belonging to a customer who is a judgment debtor, is within the jurisdiction of the Court that has decided adebt as due to the judgment creditor against a judgment debtor (whom the bank is in custody of his monies), such monies or funds can be utilized in settlement of the judgment debt andenforced by such Court as immediately payable to the judgment debtor/customer.?In other words, a Garnishee proceeding is a process of enforcing money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor, which forms part ofhis property in the hands of a third party for attachment. By this process, the Court is competent to order a third party in whose hands the property of the judgment debtor is, to paydirectly to the judgment creditor the debt due or accruing from him to the judgment debtor or as much as it as may be sufficient to satisfy the judgment and the costs of the proceedings.See Citizens Int'l Bank v. SCOA (Nig) Ltd (2006) 18 NWLR Pt.1011 Pg. 334.Thus, a garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor. It is sui generis and isunlike other proceedings for enforcement of judgment."Per OGUNWUMIJU, J.C.A. (Pp. 9-14, Paras. F-D) - read in context
(201
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7. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Procedure for instituting garnishee proceedings"To "garnish" is "1. To warn (2) To extract money from prisoners." A "garnishee" is "a person who has been warned not to pay a debt to anyone other than the third party who has obtainedjudgment against the debtor's own creditor" hence "garnishee proceeding(s)" are "A procedure by which a judgment creditor may obtain a Court order against a third party who owesmoney to, or holds money for, the judgment debtor. It is usually obtained against a bank requiring the bank to pay money held in the account of the debtor to the creditor." See Osborn'sConcise Law Dictionary, 9th edition, page 181. Writes the learned authors of Black's Law Dictionary, 9th edition, page 749:"Garnish, Hist. Money exacted from a new prisoner by other prisoners or as a jailer's fee. This practice was banned in England in 1815.Garnish (Old French garnir "to warn" "to prepare"). 1. Hist. To notify or warn (a person) of certain debts that must be paid before the person is entitled to receive property as an heir. 2. Tosubject (property) to garnishment; to attach (property held by a third party) in order to satisfy a debt. 3. To notify (a person, bank, etc.) that a garnishment proceeding has beenundertaken and that the one receiving notice may be liable as stakeholder or custodian of the defendant's property. - Also termed garnishee...Garnishee ...A person or institution (such as a bank) that is indebted to or is liable for another whose property has been subjected to garnishment. - Also termed garnishee-defendant (asopposed to the "principal defendant," i.e., the primary debtor)..."In Choice Investments Ltd. vs. Jeromnimon (1981) 1 All E.R. 225, Lord Denning, M.R. held at pages 226-227 as follows:"The word "garnishee" is derived from the Norman French. It denotes one who is required to "garnish", that is, to furnish a creditor with the money to pay off a debt. A simple instance willsuffice. A creditor is owed 100 pounds by a debtor. The debtor does not pay. The creditor gets judgment against him for the 100 pounds. Still the debtor does not pay. The creditor thendiscovers that the debtor is a customer of a bank and has 150 pounds at his bank. The creditor can get a "garnishee" order against the bank by which the bank is required to pay into Courtor direct to the creditor - out of its customer's 150 pounds - the 100 pounds which he owes to the creditor.There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means "unless". It is an order upon the bank to pay the 100 pounds to the judgment creditoror into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer forsome reason or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See Pritchard vs. Westminster Bank Ltd and Rainbow vs. Moorgate Properties Ltd. If nosufficient reason appears, the garnishee order is made absolute - to pay to the judgment creditor - or into Court: whichever is the more appropriate. On making the payment, the bank getsa good discharge from its indebtedness to its own customer - just as if he himself directed the bank to pay it. If it is a deposit on seven days' notice, the order nisi operates as the notice.As soon as the garnishee order nisi is served on the bank, it operates as an injunction. It prevents the bank from paying the money to its customer until the garnishee order is madeabsolute, or is discharged, as the case may be."See also Foley vs. Hill 9 E.R. 1002; Balogun vs. National Bank of Nigeria (1978) NNLR 63 at 69 and Union Bank of Nigeria Ltd. vs. Muroye (1990) NWLR (Pt.130) 69 at 77.If there has been any relationship between the appellant, namely the garnishee and the Anambra State Government (the judgment debtor), it is that of a banker and a customer, foundedon contract. In Banker and Customer by W.W. Wood, 3rd edition, Revised by James Russell appears at pages 14 to 15 the following write-up:"Primarily the relationship is one of contract. There is in the mere receiving of money to be credited to a customer's account the essential element of contract-namely, offer andacceptance: offer by the customer on his part of the money as a loan, despite the fact that the motive of deposit for safe keeping may be present, and acceptance of the money by thebank under the implied condition that it will be repaid on demand to the customer's order.When a person opens an account at a bank he does not, apart from a simple opening form, sign any document setting out the conditions on which his account will be kept. The relationshipbetween banker and customer has not been reduced to formal terms as it is in most other legal relationships - e.g., in a lease or a bill of lading. The contract, however, is not restricted tothe relationship of debtor and creditor above mentioned, but extends to all the other functions and services of banks connected with the customer's affairs. Often the banker acts as hiscustomer's agent or as custodian, and on occasion he assumes the role of principal as, for example, when he enters into contracts of guarantee or indemnity at the request of his customer.Many of these other functions are referred to throughout this handbook, but briefly they are as follows:-(1) The collection of cheques, bills, and other documents;(2) Intermediary for foreign exchange control purposes;(3) Mandatory of customers' dividends, interest, and other payments;(4) Agency for remittances to all parts of the world;(5) The issue of letters of credit and travellers' cheques;(6) Custody of securities, documents, and valuables;(7) The purchase and sale of stocks and shares, generally through brokers, on a recognized stock exchange;(8) Trade and investment inquiry services;(9) The granting of guarantees and indemnities;(10) Acting as executors and trustees under wills and settlements; and(11) The provision of an investment management service.Other functions include: taxation, cheque card and credit card facilities, share registration for company customers, a wide variety of computer services, insurance advice often through asubsidiary company, and highly sophisticated financial advice to the larger customer frequently in consultation with a Merchant Bank.While the contract between banker and customer has not been formulated, certain aspects have been settled by law, especially in regard to the conduct of accounts. Reference has alreadybeen made to the case of Foley vs. Hill, in which the relationship of debtor and creditor was established with the superadded obligation to honour cheques. Many of the implications of thecontract, however, have been admirably described by Lord Atkin in Joachimson vs. Swiss Bank Corporation, summarized in the next section, in which the duties of the parties to thecontract are discussed.DUTIES OF THE BANKER:The contract between banker and customer, as has been noticed, rests mainly on implication established by a series of legal decisions. In the case of Joachimson vs. Swiss BankCorporation, 1921, Lord Atkin summarized the position thus:"The bank undertakes to receive money and to collect bills for its customer's account. The proceeds so received are not to be held in trust for the customer, but the bank borrows theproceeds and undertakes to repay them. The promise to repay is to repay at the branch of the bank where the account is kept, and during banking hours. It includes a promise to repay anypart of the amount due against the written order of the customer addressed to the bank at the branch, and as such written orders may be outstanding in the ordinary course of business fortwo or three days. It is a term of the contract that the bank will not cease to do business with the customer except upon reasonable notice. The customer on his part undertakes to exercisereasonable care in executing his written orders so as not to mislead the bank or to facilitate forgery. I think it is necessary a term of such a contract that the bank is not liable to pay thecustomer the full amount of his balance until he demands payment from the bank at the branch at which the current account is kept."This is an excellent exposition so far as concerns the receipt and payment of money on behalf of the customer, but the duties and responsibilities are more extensive."?The duty of a judgment creditor is to commence proceedings against the bank (garnishee) or any person, institution or authority, etc, having custody of the judgment debtor's moneys byway of an exparte application in order to show how the judgment debtor is indebted to him and further showing that the judgment debt was partially recovered but there is still anoutstanding balance or a fixed or ascertainable amount and "...that any other person is indebted to such debtor and is within the State" as provided under Part (a) of Section 83(1) of theSheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004. Upon proof of how the judgment debt arose, the judgment creditor/applicant usually prays in the sameexparte application that the Court should "...order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment ororder, 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 causewhy 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 ororder together with costs aforesaid." See Part (b) of Section 83(1) of the Act (supra). The exparte order the applicant/judgment creditor obtains against the garnishee is called an "ordernisi" under Section 83(2) of the Act (supra). The provision reads as follows: "(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnisheeand on the judgment debtor."A garnishee on whom an order nisi has been served to appear and show cause why an order absolute should not be made may, depending on the circumstances of each case, invokestatutory defences that are provided under Sections 84 and 85 of the Sheriffs and Civil Process Act Cap. S.6 to wit:"84. Consent of appropriate officer or Court necessary if money is held by public officer or the Court:(1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not bemade under the provisions of the last preceding Section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of apublic officer or of the Court in the case of money in custodia legis, as the case may be.(2) In such cases the order of notice must be served on such public officer or on the registrar of the Court, as the case may be.(3) In this Section, "appropriate officer" means:-(a) In relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation.(b) In relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.85. Order for attachment to bind debt:Service of an order that a debt due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the Court may direct, shall bind such debt inhis hands."The garnishee may file an affidavit to deny that it is not in the custody of the moneys of the judgment debtor, or that the judgment debtor is not a customer, etc, and that becomes a triableissue. Sections 87-89 of the Act provides as follows:"87. Trial of liability of garnishee: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 hisliability 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.88. Lien or claim of third person on debt:Whenever in any proceedings to obtain an attachment of a debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person or that any third personhas a lien or charge upon it, the Court may order such third person to appear and state the nature and particulars of his claim upon such debt.89. Order may be made if third person does not appear:If the third person as described in the last preceding Section does not appear, the Court on proof of service of a copy of the order may proceed to make an order as if such person hasappeared."Had the appellant denied that the Government of Anambra State was not its customer, nor, though a customer, had no moneys in her accounts with the bank, etc, the onus would haveshifted to the judgment creditor/respondent to establish otherwise, for he who asserts has the onus of proof. A garnishing bank, person or authority served notice of a garnisheeproceedings that does not want or intend to be saddled with unnecessary or costly litigation may do well to put the judgment debtor/customer on notice to avoid paying the cost of theproceedings. Sections 90-92 of the Act provides as follows:"90. Procedure upon appearance of claimants:Upon the appearance of such third person, after hearing his allegations and those of any other person who the Court may order to appear, the Court may order execution to issue to levythe amount due from the garnishee, or any issue or question to be tried and determined, and may bar the claim of such third person, or may make such other order, upon such terms withrespect to any lien or charge or otherwise, as the Court shall think just.91. Garnishee Discharge:Payment made by or execution levied upon a garnishee under any such proceedings shall be a valid discharge to him against the debtor liable under a judgment or order, to the amountpaid or levied, even although such proceeding may be set aside or the judgment or order reversed.92. Private alienation after attachment void:After an attachment shall have been made by actual seizure or by written order as aforesaid and in case of attachment by written order, after it shall have been duly intimated and madeknown in manner aforesaid, any alienation without leave of the Court of the property attached, whether by sale, gift or otherwise and any payment of any debt or debts or dividends orshares to the judgment debtor during the continuance of the attachment, shall be null and void."Rather than complying with the order nisi the appellant became evasive and has assumed the role of a defender of the Anambra State Government/judgment debtor. All that the judgmentcreditor/respondent in this Court had to establish was that the garnishee was "...indebted to such debtor and is within State" for the Court to order that "debts owing from such thirdperson, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order..." See Section 83(1) Part (b) of the Act."Per TUR, J.C.A. (Pp. 26-39, Paras. A-E) -read in context
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8. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Principles governing garnishee proceedings"Section 3(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows:"3(1) There shall be 36 States in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo,Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.(2) Each State of Nigeria, named in the first column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of thatSchedule.(3) The headquarters of the Government of each State shall be known as the Capital City of that State as shown in the third column of the said Part I of the First Schedule opposite the Statenamed in the first column thereof."Anambra State has a "Government". A "Government" is defined in Section 318(1) of the Constitution to include "...the Government of the Federation or of any State, or of a localgovernment council or any person who exercise power or authority on its behalf." Authority is defined to include "Government." A "function" includes "power and duty". A "person" includes"anybody of persons corporate or unincorporate." See Section 18(1) of the Interpretation Act Cap. 123, Laws of the Federation of Nigeria, 2004. Every State Government exercises powersand functions through persons, authorities or offices, etc. Moneys are held by such persons, authorities or bodies, for instance in banks, or by public officers for and on behalf of theGovernment. See Sections 316-317 of the Constitution.Section 83(1) of the Sheriffs and Civil Process Act Cap. S.6 does not lay any burden on a judgment creditor to establish how many accounts a judgment debtor has with a third party or as inthis case, the appellant. All that the judgment creditor is to establish is that the appellant is a debtor to the Anambra State Government (the judgment debtor). Section 124(1)-(3) of theEvidence Act, 2011 provides as follows:"124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is:-(a) Common knowledge in the locality in which the proceeding is being held, or generally; or(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this Section refers, and shall take such knowledge into account.(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of suchknowledge, as is necessary to ensure that the party is not unfairly prejudiced."?It is common knowledge that modernized banks conduct business through the use of computers. Section 258(1) of the Evidence Act, 2011 defines what is a "bank," a "banker"; "banker'sbooks," "banking business" and "computer" as follows:"258(1) In this Act:-"Bank" or "banker" means a bank licensed under the Banks and Other Financial Institutions Act Cap. B3, Laws of Federation of Nigeria, 2004 and includes anybody authorized under anenactment to carry on banking business."Banker's books" (and related expressions) includes ledger, day books, cash books, account books and all other books used in banking business."Banking business" has the meaning assigned to it in the Banks and Other Financial Institutions Act, 1991."Computer" means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it bycalculation, comparison or any other process."Sections 51 and 52 of the Evidence Act, 2011 is couched as follows:"51. Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire but suchstatements shall notalone be sufficient evidence to charge any person with liability.52. An entry in any public or other official books, register or record, including electronic record stating a fact in issue or relevant fact and made by a public servant in the discharge of hisofficial duty, by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible."Per TUR, J.C.A.(Pp. 42-46, Paras. A-B) - read in context
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HELEN MORONKEJI OGUNWUMIJU, J .C.A.
(Delivering the Leading Judgment): This is an appeal
against the Ruling of the High Court of Anambra State
delivered by Hon. Justice H.O. Ozoh on 15/7/2013.
The facts leading to this appeal are that the Respondent as
judgment/creditor having obtained a judgment of
N23,936,100.25 at the Contracts Evaluation Debts and
Property Recovery Tribunal of Anambra State of Nigeria
subsequently obtained at the High Court an Order Nisi on
9/4/13 via a motion ex parte, directing the Appellant as 3rd
garnishee (one of three garnishees) to show cause why an
order should not be made upon it for payment to the
Respondent the amount of judgment debt due to the
Respondent or so much as would satisfy the judgment debt
and the costs entered on the summons. The Appellant filed
an affidavit showing cause but did not furnish the Court
with the amount belonging to the judgment debtor in its
custody citing lack of specific account details as the reason
for the non-disclosure.
The learned trial judge consequently made an order on
15/7/13 directing the Appellant to furnish the Court with
the amount in all the accounts
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maintained by the Anambra State Government with the
Appellant within seven (7) days.
Dissatisfied with the Ruling, the Appellant filed a Notice of
Appeal on 19/7/13. The Record of Appeal was transmitted
on 12/12/13 and deemed transmitted on 12/12/13.
Appellant’s brief of argument was filed on 25/2/14 and
deemed filed on 25/9/14. The Respondent’s brief of
argument was filed on 8/10/14.
The Appellant’s brief of argument was settled by C.P.
Oguchienti, Esq. who formulated two issues for
determination as follows:
1. Whether the lower Court rightly made its
Garnishee Order Nisi absolute, in the face of the
challenge posed by the Appellant in its Affidavit
showing cause.
2. Whether the lower Court, on the strength of non-
disclosure of sufficient particulars, to wit; Account
Names and Account Number of the judgment Debtor,
domiciled with the Appellant?
The Respondent’s counsel C.I. Okafor Esq. in his brief of
argument adopted the issues formulated in the Appellant’s
brief of argument.
I have read the Records and considered the Grounds of
Appeal as well as arguments of counsel. The sole issue for
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determination distillable from the Grounds of Appeal and
the complaints of the Appellant as emanating from the
decision of the trial Court is:-
Whether the order of the trial Court directing the
Appellant to furnish the Court with the amount in all
the accounts operated by the Anambra State
Government with the Appellant was perverse with
regard to garnishee proceedings.
SOLE ISSUE
Whether the order of the trial Court directing the
Appellant to furnish the Court with the amount in all
the accounts operated by the Anambra State
Government with the Appellant was perverse with
regard to garnishee proceedings.
Appellant’s counsel argued that the law does not compel a
garnishee, who has shown cause why the amount stated in
the garnishee order nisi of Court should not be paid, to pay
the amount stated where the order of Court does not state
the particulars of the judgment debtor’s account. Counsel
cited Sec. 83 & 87 of the Sheriffs and Civil Process Act Cap
65 LFN, 2004.
Counsel for the Appellant submitted that the provisions of
Sec 83 of the Sheriffs and Civil Process Act Cap 65 LFN,
2004, becomes enforceable against a
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garnishee, only where he fails to attend Court or show
cause why the garnishee order should not be made
absolute. Counsel insisted that an order absolute can only
be made where the garnishee admitted that he was served
with the garnishee order but failed to show cause why the
Order Nisi should not be made absolute. Counsel cited Sec.
86 Sheriffs and Civil Process Act Cap 65 LFN, 2004,
Udensi Ndubisi & 2 Ors v. Surresh Jarparputra & Anor
in Re: Diamond Bank Ltd (2002) 17 NWLR Pt. 795 Pg.
120.
Appellant’s counsel argued that the order of the lower
Court, directing the Appellant to disclose the amount in all
the accounts of the judgment debtor is not only against the
provisions of Sec.83 of Sheriffs and Civil Process Act, it is
outside the scope of Decree Nisi. Counsel maintained that
it was an issue outside the contemplation of the parties who
are ordinarily bound and confined to the issues presented
to the Court and that the Court is also bound to confine
itself to the issues before it. Counsel cited Oredoyin vs.
Arowolo (1989) 4 NWLR Pt. 114 Pg. 172 at 192;
Uzochukwu vs. Ezeonu II (1991) 6 NWLR Pt. 200 Pg.
708 at 784-785.
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Appellant’s counsel argued that the order of Court
directing the Appellant to reveal all account details of the
judgment debtor amounts to a usurpation of the contractual
duty of care owed the judgment debtor by the Appellant.
Counsel further argued that the judgment debtor (Anambra
State Government) is a customer of the Appellant and like
every other customer of the bank; the Appellant owes her a
contractual duty of care and security of its account
position. Counsel cited Emmanuel Agbanelo vs. Union
Bank of Nigeria Ltd (2000) 4 S.C. Pt. 1 Pg. 233 at 242.
Learned Appellant’s counsel argued that if the order of the
lower Court that the Appellant should disclose all the
accounts of the judgment debtor (Anambra State
Government) is obeyed, a dedicated account or an account
meant for payment of workers’ salary may wrongly be
attached.
Learned counsel for the Appellant submitted that a person
who knows his judgment debtor has an account with a
bank, should have knowledge of the particulars of the
account he knows, otherwise it would just amount to
speculation, probably because he saw the judgment debtor
entering or leaving the
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premises of the bank. Counsel argued that a party who
desires the Court to favor him, ought to provide the Court
with essential materials that would aid the Court in taking
a decision in his favour.
Appellant’s counsel argued further that the Court has no
jurisdiction to grant an order which was not prayed for by a
party and that the decision of the lower Court that ‘the
Government Anambra State is known by everybody’ falls
within the realm of speculation which the Courts have been
enjoined not to undertake. Counsel cited Zabusky vs.
Isreali Aircraft Industries (2007) All FWLR Pt. 352 Pg.
1782 Paras G-H. Counsel also relied on Sec. 131 (1)
Evidence Act 2010; Awuse vs. Odili (2005) All FWLR Pt.
261 Pg. 321-322 Paras. H-C.
In response, learned Respondent’s counsel argued that
there was no ambiguity in the order of the Court below,
and no order absolute was made by the lower Court.
Counsel argued that an order absolute is an order which
puts an end to an action, in determining the finality of an
order, the order itself would be considered by the Court,
and not the nature of the proceedings. Counsel cited
Animashaun vs. Bakare
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(2010) 16 NWLR Pt. 1220 Pg. 513; Odeh vs. Ameh
(2004) 4 NWLR Pt. 863 Pg. 309; Ogboru vs. Ibori
(2006) 17 NWLR Pt. 1009 Pg. 542; Nwabueze vs.
Nipost (2006) 8 NWLR Pt. 983 Pg. 480.
Respondent’s counsel argued that the proceedings of the
lower Court was a garnishee proceedings to enable the
Respondent as the judgment creditor/garnishor, attach the
sums held by the Appellant to the credit of the judgment
debtor, in order to use same to satisfy the judgment debt.
Respondent’s counsel argued that the Appellant as 3rd
garnishee was required only to show cause why the amount
as contained in the accounts of the judgment debtor held
by the Appellant should not be used to satisfy the judgment
debt and the Court held that the excuse of the Appellant
that it could not conduct a search was not sufficient reason
not to comply with the order nisi and thereby ordered the
Appellant to furnish the Court with all accounts operated
by the judgment debtor.
Respondent’s counsel argued that the order made by the
lower Court does not constitute final orders. Counsel
argued that the order of the lower Court mandated the
Appellant to comply with a
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previous order, which was an order mandating the
Appellant to furnish the Court with the details of all the
account of the judgment debtor.
Respondent’s counsel argued that Sec. 83 & 87 of the
Sheriffs and Civil Process Act did not provide for the
production of account number and account name in a
garnishee proceeding. Counsel argued that the lower Court
in compliance with Sec. 87 of the Sheriffs and Civil Process
Act Cap 65 LFN, 2004, was in the process of determining
whether the Appellant holds funds belonging to the
judgment debt and whether it was sufficient to satisfy the
judgment debt.
Learned Respondent’s counsel argued that the Appellant
did not dispute liability, it also did not contest that there is
one entity called Anambra State Government, rather it gave
an excuse that it was not in a position to confirm if it was
holding such funds, as no account name or account number
was supplied.
Respondent’s counsel argued that in a garnishee
proceeding, all the applicant needs to do is to commence
the proceedings in compliance with the provisions of
Sheriffs and Civil Process Act. Counsel cited N.A.O.C. vs.
Ogini (2011) 2
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NWLR Pt. 1230 Pg. 131.
Respondent’s counsel argued that when there is an order
nisi, pending the issuance or otherwise of an order
absolute, the garnishee is refrained from using the money
held in its account for the judgment debtor in a way that
would jeopardize the satisfaction of the judgment debt.
Counsel cited CBN VS. Kraus Thompson Org. Ltd
(2002) 5 NWLR Pt. 765 Pg. 139.
Learned Respondent’s counsel argued that a banker is
entitled to combine different accounts kept by the customer
in his own right, even though at different branches of the
same bank, and to treat the balance, if any, as the only
amount standing to its credit. Counsel argued that where a
judgment debtor’s money is traced to a bank, all money in
his credit is attachable. Counsel cited F.I.B. Plc vs.
Effiong (2010) 16 NWLR Pt. 1218 Pg. 199; Sokoto
State Government vs. Kamdex (Nig) Ltd (2004) 9
NWLR Pt. 878 Pg. 345.
OPINION
It is beyond doubt that one of the methods by which
liquidated money judgments can be enforced is by way of
garnishee proceedings. Garnishee proceedings is defined in
Black’s Law Dictionary as follows:
A judicial
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proceeding in which a creditor (or potential creditor)
asks the Court to order a third party who is indebted
to or is bailee for the debtor to turn over to the
creditor any of the debtor’s property (such as wages
or bank accounts) held by that third party.
Part V- Attachment of debts by Garnishee Order is the
appropriate part of the Sheriffs and Civil Process Act which
regulates this process. I will set out the relevant provisions
necessary to determine the issue under consideration. S. 83
provides as follows:
83(1). 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 or his legal practitioner that
judgment has been recovered and that it is still
unsatisfied and to what amount and that any other
person is indebted to such debtor and is within the
State, order the 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
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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 there of as may be sufficient to satisfy the
judgment or order together with costs aforesaid.
83(2). At least fourteen days before the day of
hearing, a copy of the order nisi shall be served upon
the garnishee and on the judgment debtor.
S. 87 also provides as follows:
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.
A garnishee proceeding can be described in two stages; the
first stage is the process of getting an order nisi. The order
nisi directs the garnishee to appear in Court on a specified
date to show cause why an order should not be made upon
him for payment to the judgment creditor
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the amount of the debt owed the judgment debtor. This is
usually done ex parte and limited to the judgment creditor
and the Court.
The second stage is where on the return date the garnishee
does not attend, or does not dispute the debt claimed to be
due from him to the judgment debtor, the Court may,
subject to certain restrictions, make the garnishee order
absolute under which the garnishee is ordered to pay to the
judgment creditor the amount of debt due from him to the
judgment debtor, or so much of it as is sufficient to satisfy
the judgment debt together with the cost of the
proceedings and cost of garnishee. This later proceeding is
tripartite between the judgment debtor, judgment creditor
and the Garnishee. This is because on the return date all
parties must have been served and given an opportunity to
dispute liability or pray that the order nisi be discharged
for one cause or the other as shown by any of the parties,
particularly the garnishee. This is because the garnishee
may dispute his liability to pay the debt. He will appear in
Court on the return date and dispute his liability by
denying indebtedness to the judgment debtor.
There is
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no doubt that a garnishee proceeding is a means of
collecting a monetary judgment against a judgment debtor
by ordering a third party (the garnishee) to pay money,
otherwise owed to the judgment debtor, directly to the
judgment creditor. In UBN Plc. V. Boney Marcus
Industries Ltd. & Ors. (2005) All FWLR (Pt.278) 1037
at 1046, garnishee proceeding was defined as a process of
enforcing a money judgment by the seizure or attachment
of the debts due or accruing to the judgment debtor which
form part of his property available in execution. It is in the
hands of a third party whereby, the Court order is required
to direct the third party to pay directly to the judgment
creditor.
By the Judgment Enforcement Rules, where any bank, in
custody of the monies belonging to a customer who is a
judgment debtor, is within the jurisdiction of the Court that
has decided a debt as due to the judgment creditor against
a judgment debtor (whom the bank is in custody of his
monies), such monies or funds can be utilized in settlement
of the judgment debt and enforced by such Court as
immediately payable to the judgment debtor/customer.
In other words, a Garnishee
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proceeding is a process of enforcing money judgment by
the seizure or attachment of the debt due and accruing to
the judgment debtor, which forms part of his property in
the hands of a third party for attachment. By this process,
the Court is competent to order a third party in whose
hands the property of the judgment debtor is, to pay
directly to the judgment creditor the debt due or accruing
from him to the judgment debtor or as much as it as may be
sufficient to satisfy the judgment and the costs of the
proceedings. See Citizens Int'l Bank v. SCOA (Nig) Ltd
(2006) 18 NWLR Pt.1011 Pg. 334.
Thus, a garnishee proceeding is a process leading to the
attachment of debt owed to a judgment debtor by a third
party who is indebted to the judgment debtor. It is sui
generis and is unlike other proceedings for enforcement of
judgment.
Moving away from the generic description of Garnishee
proceedings to the peculiar facts of this case, the
contention of the Appellant can be summed up concisely as
the alleged wrongful order of the trial Court mandating the
Appellant to furnish the Court with all the accounts of the
judgment debtor in its custody in the absence
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of particulars of the account to be attached for execution.
Appellant’s counsel argued strenuously that without the
account number of the judgment debtor, to reveal all
account details of the judgment debtor amounts to a
usurpation of the contractual duty of care owed the
judgment debtor by the Appellant and that the Appellant
owes the judgment debtor a contractual duty of care and
security of its account position.
This argument of counsel is misguided. Mbaba JCA in
Oceanic Bank Plc v. Oladepo (2012) LPELR-19670
rightly put the position of this Court as follows:
“I have already stated in this judgment that the
relevant particulars required by Section 83(1) of the
Sherriff and Civil Process Act, for the purpose of
garnishee proceedings, had been satisfied by the 1st
Respondent and that the Application at the lower
Court was not speculative, simply because the
account number and the exact amount to the credit of
the judgment Debtor were not stated by the 1st
Respondent. Of course, the information as to the
account number and the exact amount in the account,
were information within the exclusive knowledge of
the Appellant and the 2nd
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Respondent, and by banking confidentialities, division
of such information is not permitted to a 3rd party.
The 1st Respondent was therefore not expected to
have such detail.”
Counsel’s reliance on Emmanuel Agbanelo vs. Union
Bank of Nigeria Ltd (Supra) is misconceived. In that
case, the Appellant operated a current account in the name
and style of EPACO (Nigeria) Marketing Company with one
of the Respondent’s branches in Warri. On the instruction
of the Appellant, the Respondent issued a bank draft in
favour of the manufacturer’s payable at the Respondent’s
branch in Surulere. Upon presentation of the draft by the
manufacturers for payment, it was returned unpaid and
endorsed ‘1st signature irregular’. Claiming that these
words endorsed on the draft were defamatory of him and
that the draft was negligently refused, the Appellant
instituted an action at the High Court and claimed
damages.
Upon appeal to the Supreme Court after the trial Court and
the Court of Appeal decided against the Appellant, the
Supreme Court held that a bank has a duty to a person on
whose request it has agreed to issue a draft to issue
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and honour such draft. In the discharge of that duty, it
must show care to ensure that the banker’s draft is
properly issued and honoured. The Supreme Court held
that from the facts of the case, it was clear that the
Respondent was in breach of the duty of reasonable care
and skill it owed to the Appellant.
This has nothing to do with the instant case. The duty of
confidentiality owed a customer is certainly subject to an
order of Court. It is firmly settled that an order of Court
must be obeyed until such a time that the order is set aside.
There is no doubt that a bank owes its customers a legal
duty of confidentiality not to disclose information to third
parties, a breach of which could give rise to liability in
damages. This duty arises between a bank and its customer
as soon as an account is opened and as a matter of fact, it
cont inues even a f ter the terminat ion o f the
banker/customer relationship. All information which
include details of customers’ accounts, their names and
addresses obtained by virtue of the banker/customer
relationship are covered by the duty of confidentiality and
must be protected from unauthorized access by a
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third party.
However, there are exceptions to this duty of
confidentiality owed a customer by the bank. This was ably
laid down in the Locus classicus case of Tournier V.
National Prudential Bank of England (1923) All ER
550, (1924) 1 KB 461.
The English Court held as follows:
“In my opinion it is necessary in a case like the
present to direct the jury. What are the limits, and
what are the qualifications of the contractual duty of
secrecy implied in the relation of banker and
customer. There appears to be no authority on the
point. On principle I think that the qualifications can
be classified under four heads: (a) Where disclosure
is under compulsion by law; (b) where there is a duty
to the public to disclose; (c) where the interests of the
bank require disclosure; (d) where the disclosure is
made by the express or implied consent of the
customer.”
The Code of Banking Practice produced by the General
Assembly of Bank Chief Executives under the auspices of
The Chartered Institute of Bankers of Nigeria has
incorporated these exceptions in Article 7 thereof. It is as
follows:
7.1. Banks will observe a strict duty of
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confidentiality about their customers (and former
customers’) affairs and will not disclose details of
customers’ accounts or their names and addresses to
any third party, including other companies in the
same group, other than in the four exceptional cases
permitted by the law, namely:
7.1.1 Where a bank is legally compelled to do so;
7.1.2 Where there is a duty to the public to disclose;
7.1.3 Where the interests of the bank require
disclosure; and
7.1.4 Where disclosure is made at the request or with
the consent (expressed or implied) of the customer.
7.2 Banks will not use exception 7.1.3 above to justify
the disclosure for marketing purposes of details of
customers’ accounts or their names and addresses to
any third party, including other companies within the
same group.
7.3 All banks should insist on their staff signing a
‘Declaration of Secrecy’ to guarantee the
confidentiality of customer information.
S e e a l s o U B A V . C A C & O r s . ( 2 0 1 6 )
LPELR-40569(CA). This Court held that the Appellant
cannot hide behind the confidentiality veil to attempt to
frustrate a legitimate exercise of the
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statutory power granted to an agency or person under the
law. It was held that confidential client information may be
disclosed under Section 317 CAMA as well as the exercise
of the Commission’s general power to require provision of
information and documents in discharging its functions
pursuant to Section 7 of CAMA.
In other words, one of the exceptions to the duty of
confidentiality owed a customer by the bank is where there
is a Court order compelling the disclosure of the account
details or any other information of a customer. Such Court
order obviates the liability that a bank would ordinarily
incur in the event of a breach of the duty of confidentiality.
An Order Nisi is no less an order of Court and the Appellant
is bound by it.
At page 164 of the record, the trial Court held as follows:
“The Government of Anambra State is known by
everybody. No other institution is called Anambra
State Government. The order nisi was directed to it. I
therefore hold that the name Government of Anambra
State is sufficient enough for the 3rd Garnishee to act
and obey the order nisi by furnishing the amount in
the various accounts maintained by
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Government of Anambra State.”
I agree with the learned trial judge that the Government of
Anambra State is known by everybody as no other
institution or body can be known as and called Anambra
State Government. It is an accepted matter of public
knowledge of which this Court rightly takes judicial notice
that Anambra State Government, being a juristic person
duly recognized by the 1999 Constitution is the only one
capable of operating an account with the name Anambra
State Government. This is a notorious fact which requires
no proof.
The law does not prohibit a judgment creditor who does not
have the account numbers of a judgment debtor from
instituting garnishee proceedings against a bank in whose
custody the monies of a judgment debtor resides. Counsel
for the Appellant made heavy weather of this issue and
relied on Sections 83 & 87 in so doing. I have read the
provisions and they are generously quoted in this judgment,
I see nothing to support the argument of counsel in that
regard.
That was the point made by Mbaba JCA in Oceanic Bank
v. Oladepo (Supra) to the effect that the Bank would not
have disclosed to the Respondent the
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details of the accounts of the judgment debtor. Only the
Court can command that confidential information which it
has done in this case.
With the greatest respect, it is clear that there is an
abysmal lack of understanding of the garnishee
proceedings by learned Appellant’s counsel.
The order of Court was not an order absolute as counsel for
the Appellant contends. While the other two garnishees
(Access Bank Plc. and Diamond Bank Plc.) in obedience to
the Court order, filed affidavits disclosing the accounts of
the judgment debtor with them to show cause why they
should not satisfy the judgment debt, the Appellant
blatantly refused and resorted to legal games after the
Order Nisi was served on it.
In fact, the Appellant submitted at paragraph 5.11 of the
Appellant’s Brief that Anambra State Government through
its various Ministries and Departments keep several
accounts with the banks and without specific account
particulars, certain accounts ‘may be wrongly attached
with the concomitant dangerous effect’. In one breath, the
Appellant claims it could not conduct a search because
there was not enough particulars, on
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another, the Appellant admits that the judgment debtor
operates several accounts with the Appellant but the
‘dangerous effect’ of complying with the order of Court
prevents the Appellant from so doing. That is absolutely
unacceptable.
It has been reiterated by the Courts that it is not the duty
or business of a garnishee to play the role of a defender or
advocate for a judgment debtor by attempting to protect
the money of the judgment debtor in its custody. By
refusing to disclose the accounts of the judgment debtor, it
is clear to me that the Appellant is doing its best to disobey
an order of Court.
In sum, the order of Court appealed against is not an order
absolute, it is an order mandating the Appellant to furnish
the Court with the accounts operated by the judgment
debtor with the Appellant. It does not automatically
transmit to an order of Court attaching the funds for
execution as it is under an order absolute. What it is, is an
attempt by the Court to ascertain whether such funds at
the disposal of the Appellant belonging to the judgment
debtor can satisfy the judgment debt which is the essence
of the order nisi for the Appellant
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to show cause.
This appeal is a calculated waste of the Respondent’s time
by the Appellant who surprisingly was not party to the suit.
The Appeal is wholly without merit and is hereby dismissed.
Costs of N200,000.00 is awarded against the Appellant in
favour of the Respondent.
Appeal Dismissed.
JOSEPH TINE TUR, J.C.A.: I had the privilege to read in
advance the decision of my learned colleague on the bench,
Helen Moronkeji Ogunwumiju, JCA. I am in total agreement
with the conclusion that the appeal lacks merit. I may add
that the appeal is frivolous and vexatious and should be
dismissed. The cost of this appeal should be shouldered by
the appellant. The legislative intention is that any
determination by a Justice of the Supreme Court or the
Court of Appeal is an “opinion” or a “decision.” This is
provided in Sections 294(2)-(4) and 318(1) of the
Constitution of the Federal Republic of Nigeria, 1999
altered. The provisions are couched as follows:
“(2) Each Justice of the Supreme Court or of the
Court of Appeal shall express and deliver his
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opinion in writing, or may state in writing that he
adopts the opinion of any other Justice who delivers a
written opinion:
Provided that it shall not be necessary for the Justices
who heard a cause or matter to be present when
judgment is to be delivered and the opinion of a
Justice may be pronounced or read by any other
Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one
Judge shall be determined by the opinion of the
majority of its members.
(4) For the purpose of delivering its decision under
this Section, the Supreme Court, or the Court of
Appeal shall be deemed to be duly constituted if at
least one member of that Court sits for that purpose.
xxxxxxxxxxxxxxx
318(1) “Decision” means, in the relation to a Court,
any determination of that Court and includes
judgment; decree, order, conviction, sentence or
recommendation.”
I have tagged this determination an opinion so as to
conform with the legislative intention. The learned Counsel
to the appellant has misconceived the purport of a
garnishee proceeding. That misled the learned Counsel to
have appealed
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the decision of the learned trial Judge, H.O. Ozoh, J.,
rendered on 15th July, 2013. To “garnish” is “1. To warn
(2) To extract money from prisoners.” A “garnishee” is
“a person who has been warned not to pay a debt to
anyone other than the third party who has obtained
judgment against the debtor’s own creditor” hence
“garnishee proceeding(s)” are “A procedure by which
a judgment creditor may obtain a Court order against
a third party who owes money to, or holds money for
the judgment debtor. It is usually obtained against a
bank requiring the bank to pay money held in the
account of the debtor to the creditor.” See Osborn’s
Concise Law Dictionary, 9th edition, page 181. Writes the
learned authors of Black’s Law Dictionary, 9th edition,
page 749:
“Garnish, Hist. Money exacted from a new prisoner by
other prisoners or as a jailer’s fee. This practice was
banned in England in 1815.
Garnish (Old French garnir “to warn” “to prepare”).
1. Hist. To notify or warn (a person) of certain debts
that must be paid before the person is
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entitled to receive property as an heir. 2. To subject
(property) to garnishment; to attach (property held by
a third party) in order to satisfy a debt. 3. To notify (a
person, bank, etc.) that a garnishment proceeding has
been undertaken and that the one receiving notice
may be liable as stakeholder or custodian of the
defendant’s property. – Also termed garnishee…
Garnishee …A person or institution (such as a bank)
that is indebted to or is liable for another whose
property has been subjected to garnishment. – Also
termed garnishee-defendant (as opposed to the
“principal defendant,” i.e., the primary debtor)…”
In Choice Investments Ltd. vs. Jeromnimon (1981) 1
All E.R. 225, Lord Denning, M.R. held at pages 226-227 as
follows:
“The word “garnishee” is derived from the Norman
French. It denotes one who is required to “garnish”,
that is, to furnish a creditor with the money to pay off
a debt. A simple instance will suffice. A creditor is
owed £100 by a debtor. The debtor does not pay. The
creditor gets judgment against him for the £100. Still
the
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debtor does not pay. The creditor then discovers that
the debtor is a customer of a bank and has £150 at
his bank. The creditor can get a “garnishee” order
against the bank by which the bank is required to pay
into Court or direct to the creditor – out of its
customer’s £150 – the £100 which he owes to the
creditor.
There are two steps in the process. The first is a
garnishee order nisi. Nisi is Norman-French. It means
“unless”. It is an order upon the bank to pay the £100
to the judgment creditor or into Court within a stated
time, unless there is some sufficient reason why the
bank should not do so. Such reason may exist if the
bank disputes its indebtedness to the customer for
some reason or other. Or if payment to this creditor
might be unfair to prefer him to other creditors: See
Pritchard vs. Westminster Bank Ltd and Rainbow vs.
Moorgate Properties Ltd. If no sufficient reason
appears, the garnishee order is made absolute – to
pay to the judgment creditor – or into Court:
whichever is the more appropriate. On making the
payment, the bank gets a good discharge from its
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indebtedness to its own customer – just as if he
himself directed the bank to pay it. If it is a deposit
on seven days’ notice, the order nisi operates as the
notice.
As soon as the garnishee order nisi is served on the
bank, it operates as an injunction. It prevents the
bank from paying the money to its customer until the
garnishee order is made absolute, or is discharged, as
the case may be.”
See also Foley vs. Hill 9 E.R. 1002; Balogun vs.
National Bank of Nigeria (1978) NNLR 63 at 69 and
Union Bank of Nigeria Ltd. vs. Nwoye (1990) NWLR
(Pt.130) 69 at 77.
If there has been any relationship between the appellant,
namely the garnishee and the Anambra State Government
(the judgment debtor), it is that of a banker and a
customer, founded on contract. In Banker and Customer by
W.W. Wood, 3rd edition, Revised by James Russell appears
at pages 14 to 15 the following write-up:
“Primarily the relationship is one of contract. There is
in the mere receiving of money to be credited to a
customer’s account the essential element of contract-
namely, offer and acceptance: offer by the customer
on his part of the money as a
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loan, despite the fact that the motive of deposit for
safe keeping may be present, and acceptance of the
money by the bank under the implied condition that it
will be repaid on demand to the customer’s order.
When a person opens an account at a bank he does
not, apart from a simple opening form, sign any
document setting out the conditions on which his
account will be kept. The relationship between banker
and customer has not been reduced to formal terms
as it is in most other legal relationships – e.g., in a
lease or a bill of lading. The contract, however, is not
restricted to the relationship of debtor and creditor
above mentioned, but extends to all the other
functions and services of banks connected with the
customer’s affairs. Often the banker acts as his
customer’s agent or as custodian, and on occasion he
assumes the role of principal as, for example, when he
enters into contracts of guarantee or indemnity at the
request of his customer. Many of these other
functions are referred to throughout this handbook,
but briefly they are as follows:-
(1) The collection of cheques, bills, and other
documents;
(2)
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Intermediary for foreign exchange control purposes;
(3) Mandatory of customers’ dividends, interest, and
other payments;
(4) Agency for remittances to all parts of the world;
(5) The issue of letters of credit and travellers’
cheques;
(6) Custody of securities, documents, and valuables;
(7) The purchase and sale of stocks and shares,
generally through brokers, on a recognized stock
exchange;
(8) Trade and investment inquiry services;
(9) The granting of guarantees and indemnities;
(10) Acting as executors and trustees under wills and
settlements; and
(11) The provision of an investment management
service.
Other functions include: taxation, cheque card and
credit card facilities, share registration for company
customers, a wide variety of computer services,
insurance advice often through a subsidiary company,
and highly sophisticated financial advice to the larger
customer frequently in consultation with a Merchant
Bank.
While the contract between banker and customer has
not been formulated, certain aspects have been
settled by law, especially in regard to the conduct of
accounts.
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Reference has already been made to the case of Foley
vs. Hill, in which the relationship of debtor and
creditor was established with the superadded
obligation to honour cheques. Many of the
implications of the contract, however, have been
admirably described by Lord Atkin in Joachimson vs.
Swiss Bank Corporation, summarized in the next
section, in which the duties of the parties to the
contract are discussed.
DUTIES OF THE BANKER:
The contract between banker and customer, as has
been noticed, rests mainly on implication established
by a series of legal decisions. In the case of
Joachimson vs. Swiss Bank Corporation, 1921, Lord
Atkin summarized the position thus:
“The bank undertakes to receive money and to collect
bills for its customer’s account. The proceeds so
received are not to be held in trust for the customer,
but the bank borrows the proceeds and undertakes to
repay them. The promise to repay is to repay at the
branch of the bank where the account is kept, and
during banking hours. It includes a promise to repay
any part of the amount due against the written order
of the customer addressed to the bank at the branch,
and as
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such written orders may be outstanding in the
ordinary course of business for two or three days. It is
a term of the contract that the bank will not cease to
do business with the customer except upon
reasonable notice. The customer on his part
undertakes to exercise reasonable care in executing
his written orders so as not to mislead the bank or to
facilitate forgery. I think it is necessary a term of
such a contract that the bank is not liable to pay the
customer the full amount of his balance until he
demands payment from the bank at the branch at
which the current account is kept.”
This is an excellent exposition so far as concerns the
receipt and payment of money on behalf of the
customer, but the duties and responsibilities are
more extensive.”
The duty of a judgment creditor is to commence
proceedings against the bank (garnishee) or any person,
institution or authority, etc, having custody of the judgment
debtor’s moneys by way of an exparte application in order
to show how the judgment debtor is indebted to him and
further showing that the judgment debt was partially
recovered but there is still an outstanding balance or a
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fixed or ascertainable amount and “…that any other
person is indebted to such debtor and is within the
State” as provided under Part (a) of Section 83(1) of the
Sheriffs and Civil Process Act, Cap. S6, Laws of the
Federation of Nigeria, 2004. Upon proof of how the
judgment debt arose, the judgment creditor/applicant
usually prays in the same exparte application that the Court
should “…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.” See
Part (b) of Section 83(1) of the Act (supra). The exparte
order the applicant/judgment creditor obtains against the
garnishee is called an “order nisi” under Section 83(2) of
the Act (supra). The
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provision reads as follows: “(2) At least fourteen days
before the day of hearing, a copy of the order nisi
shall be served upon the garnishee and on the
judgment debtor.”
A garnishee on whom an order nisi has been served to
appear and show cause why an order absolute should not
be made may, depending on the circumstances of each
case, invoke statutory defences that are provided under
Sections 84 and 85 of the Sheriffs and Civil Process Act
Cap. S.6 to wit:
“84. Consent of appropriate officer or Court necessary
if money is held by public officer or the Court:
(1) Where money liable to be attached by garnishee
proceedings is in the custody or under the control of
a public officer in his official capacity or in custodia
legis, the order nisi shall not be made under the
provisions of the last preceding Section unless
consent to such attachment is first obtained from the
appropriate officer in the case of money in the
custody or control of a public officer or of the Court
in the case of money in custodia legis, as the case
may be.
(2) In such cases the order of notice must be served
on such public officer or on the registrar
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of the Court, as the case may be.
(3) In this Section, “appropriate officer” means:-
(a) In relation to money which is in the custody of a
public officer who holds a public office in the public
service of the Federation, the Attorney-General of the
Federation.
(b) In relation to money which is in the custody of a
public officer who holds a public office in the public
service of the State, the Attorney-General of the
State.
85. Order for attachment to bind debt:
Service of an order that a debt due or accruing to the
judgment debtor shall be attached, or notice thereof
to the garnishee, in such manner as the Court may
direct, shall bind such debt in his hands.”
The garnishee may file an affidavit to deny that it is not in
the custody of the moneys of the judgment debtor, or that
the judgment debtor is not a customer, etc, and that
becomes a triable issue. Sections 87-89 of the Act provides
as follows:
“87. Trial of liability of garnishee:
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
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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.
88. Lien or claim of third person on debt:
Whenever in any proceedings to obtain an attachment
of a debt it is suggested by the garnishee that the
debt sought to be attached belongs to some third
person or that any third person has a lien or charge
upon it, the Court may order such third person to
appear and state the nature and particulars of his
claim upon such debt.
89. Order may be made if third person does not
appear:
If the third person as described in the last preceding
Section does not appear, the Court on proof of service
of a copy of the order may proceed to make an order
as if such person has appeared.”
Had the appellant denied that the Government of Anambra
State was not its customer, nor, though a customer, had no
moneys in her accounts with the bank, etc, the onus would
have shifted to the judgment creditor/respondent to
establish otherwise, for he who asserts has the onus of
proof. A garnishing bank, person or authority
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served notice of a garnishee proceedings that does not
want or intend to be saddled with unnecessary or costly
litigation may do well to put the judgment debtor/customer
on notice to avoid paying the cost of the proceedings.
Sections 90-92 of the Act provides as follows:
“90. Procedure upon appearance of claimants:
Upon the appearance of such third person, after
hearing his allegations and those of any other person
who the Court may order to appear, the Court may
order execution to issue to levy the amount due from
the garnishee, or any issue or question to be tried and
determined, and may bar the claim of such third
person, or may make such other order, upon such
terms with respect to any lien or charge or otherwise,
as the Court shall think just.
91. Garnishee Discharge:
Payment made by or execution levied upon a
garnishee under any such proceedings shall be a valid
discharge to him against the debtor liable under a
judgment or order, to the amount paid or levied, even
although such proceeding may be set aside or the
judgment or order reversed.
92. Private alienation after attachment void:
After an attachment shall have
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been made by actual seizure or by written order as
aforesaid and in case of attachment by written order,
after it shall have been duly intimated and made
known in manner aforesaid, any alienation without
leave of the Court of the property attached, whether
by sale, gift or otherwise and any payment of any debt
or debts or dividends or shares to the judgment
debtor during the continuance of the attachment,
shall be null and void.”
Rather than complying with the order nisi the appellant
became evasive and has assumed the role of a defender of
the Anambra State Government/judgment debtor. All that
the judgment creditor/respondent in this Court had to
establish was that the garnishee was “…indebted to such
debtor and is within State” for the Court to order that
“debts owing from such third person, hereinafter
called the garnishee, to such debtor shall be attached
to satisfy the judgment or order…” See Section 83(1)
Part (b) of the Act.
A bank is a debtor to its customer. In The Bankers’
Liability, Revised edition, 2014 by Nkiru-Nzegwu Danjuma
appears the following passage at pages 108 to 109:
“As
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regards money deposited by the customer in an
account with the banker, the nature of the banker
and customer relationship is that of contract of
debtor and creditor. The position becomes clearer
when the customer asks for his money. As a result of
an implied undertaking by the banker to repay the
customer all or part of such deposit, the banker is a
debtor for an amount deposited. If a valid repayment
demand of the customer is not met by the banker, the
customer may bring an action against it for breach of
contract. The action will be against the bank and not
against the bank manager. In Osawaye vs. National
Bank of Nigeria Ltd. (1974) NCCR 474 the debtor and
creditor relationship was restated thus:
“The relationship between a banker and customer is
one of debtor and creditor with the additional feature
that the banker is only liable to repay the customer
on payment being demanded. There is no obligation
on the part of the banker or debtor to seek out his
creditor, the customer and pay him: obligation is only
to pay the customer or some person nominated by the
customer, when the customer makes a demand or
gives a direction for payment.”
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It is the receipt of money either from or on account of
its customer that constitutes a banker into debtor of
the customer. Thus, when a banker credits the
account of a customer with a certain sum of money,
the banker becomes a debtor to the customer to the
extent of the credit. It is to be noted that the ordinary
customer rank as an unsecured creditor in the
liquidation of the bank.
The concept of debtor and creditor in the banker and
customer relationship are not static. The banker may
in certain cases become the creditor, while the
customer assumes the position of a debtor. For
instance, where a banker grants overdrafts to its
customer and debits the customer’s account with sum
or value of the overdraft, the customer becomes a
debtor to the banker to an amount equal to the credit.
Accordingly, after the reconciliation of the banker
and customer’s account, which party is the creditor,
can sue if demand for payment is not complied with.
The Supreme Court in Yesufu vs. African Continental
Bank (supra) affirmed this legal position.”
The appellant is not a “public officer” within the
contemplation of Section 84(1)-(2)
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of the Act. The bank/garnishee is a commercial entity and
can not take refuge under the provisions of Section 84(1)-
(2) of the Act to refuse to comply with the order nisi. The
fact that the judgment debtor is the Government of
Anambra State is not a matter in dispute. Section 3(1)-(3)
of the Constitution of the Federal Republic of Nigeria, 1999
as altered provides as follows:
“3(1) There shall be 36 States in Nigeria, that is to
say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi,
Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi,
Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna,
Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa,
Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers,
Sokoto, Taraba, Yobe and Zamfara.
(2) Each State of Nigeria, named in the first column
of Part I of the First Schedule to this Constitution,
shall consist of the area shown opposite thereto in the
second column of that Schedule.
(3) The headquarters of the Government of each State
shall be known as the Capital City of that State as
shown in the third column of the said Part I of the
First Schedule opposite the State named in the first
column thereof.”
Anambra
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State has a “Government”. A “Government” is defined in
Section 318(1) of the Constitution to include “…the
Government of the Federation or of any State, or of a
local government council or any person who exercise
power or authority on its behalf.” Authority is defined to
include “Government.” A “function” includes “power
and duty”. A “person” includes “anybody of persons
corporate or unincorporate.” See Section 18(1) of the
Interpretation Act Cap. 123, Laws of the Federation of
Nigeria, 2004. Every State Government exercises powers
and functions through persons, authorities or offices, etc.
Moneys are held by such persons, authorities or bodies, for
instance in banks, or by public officers for and on behalf of
the Government. See Sections 316-317 of the Constitution.
Section 83(1) of the Sheriffs and Civil Process Act Cap. S.6
does not lay any burden on a judgment creditor to establish
how many accounts a judgment debtor has with a third
party or as in this case, the appellant. All that the judgment
creditor is to establish is that the appellant is a
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debtor to the Anambra State Government (the judgment
debtor). Section 124(1)-(3) of the Evidence Act, 2011
provides as follows:
“124(1) Proof shall not be required of a fact the
knowledge of which is not reasonably open to
question and which is:-
(a) Common knowledge in the locality in which the
proceeding is being held, or generally; or
(b) Capable of verification by reference to a document
the authority of which cannot reasonably be
questioned.
(2) The Court may acquire, in any manner it deems
fit, knowledge of a fact to which Subsection (1) of this
Section refers, and shall take such knowledge into
account.
(3) The Court shall give to a party to any proceeding
such opportunity to make submission, and to refer to
a relevant information, in relation to the acquiring or
taking into account of such knowledge, as is
necessary to ensure that the party is not unfairly
prejudiced.”
It is common knowledge that modernized banks conduct
business through the use of computers. Section 258(1) of
the Evidence Act, 2011 defines what is a “bank,” a
“banker”; “banker’s books,” “banking
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business” and “computer” as follows:
“258(1) In this Act:-
“Bank” or “banker” means a bank licensed under the
Banks and Other Financial Institutions Act Cap. B3,
Laws of Federation of Nigeria, 2004 and includes
anybody authorized under an enactment to carry on
banking business.
“Banker’s books” (and related expressions) includes
ledger, day books, cash books, account books and all
other books used in banking business.
“Banking business” has the meaning assigned to it in
the Banks and Other Financial Institutions Act, 1991.
“Computer” means any device for storing and
processing information, and any reference to
information being derived from other information is a
reference to its being derived from it by calculation,
comparison or any other process.”
Sections 51 and 52 of the Evidence Act, 2011 is couched as
follows:
“51. Entries in books of accounts or electronic
records regularly kept in the course of business are
admissible whenever they refer to a matter into which
the Court has to inquire but such statements shall not
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alone be sufficient evidence to charge any person
with liability.
52. An entry in any public or other official books,
register or record, including electronic record stating
a fact in issue or relevant fact and made by a public
servant in the discharge of his official duty, by any
other person in the performance of a duty specially
enjoined by the law of the country in which such
book, register or record is kept, is itself admissible.”
An examination of a “banker’s books” as defined in Section
258(1) of the Evidence Act, 2011 and the “computer”
printouts will reveal the number of accounts the Anambra
State Government maintains with the appellant and how
much is in the accounts to comply with an order nisi
subsequent to the making of an order absolute for purposes
of garnishee proceedings.
In my humble opinion, the argument of the learned Counsel
to the appellant is bereft of any common sense and is not
capable of convincing this Court to interfere with the
verdict of the learned trial Judge. I shall refer to the
provisions of Order 4 Rules 9(1)-(4) of the Court of Appeal
Rules, 2016 which provides as
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follows:
“9(1) On the hearing of any appeal, the Court may, if
it thinks fit, make any such order(s) as could be made
in pursuance of an application for a new trial or to set
aside a verdict, finding or judgment of the Court
below.
(2) The Court shall not be bound to order a new trial
on the ground of misdirection, or of the improper
admission or rejection of evidence, unless in the
opinion of the Court some substantial wrong or
miscarriage of justice has been thereby occasioned.
(3) A new trial may be ordered on any question
without interfering with the finfing or decision on any
other question; and if it appears to the Court that any
such wrong or miscarriage of justice as is mentioned
in Sub-rule (2) of this Rules affects part only of the
matter in controversy or one or some only of the
parties, the Court may order a new trial as to the
party only, or as to that party or those parties only,
and give final judgment as to the remainder.
(4) In any case where the Court has power to order a
new trial on the ground that damages awarded by the
Court below are excessive or inadequate, the Court
may in lieu of ordering a new trial:-
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(a) Substitute for the sum awarded by the Court
below such sum as appears to the Court to be proper;
(b) Reduce or increase the sum awarded by the Court
below by such amount as appears to the Court to be
proper in respect of any distinct head of damages
erroneously included or excluded from the sum so
awarded. But except as aforesaid, the Court shall not
have power to reduce or increase the damages
awarded by the Court below.”
The appellant has not shown any substantial wrong nor that
the decision of the learned trial judge has occasioned any
miscarriage of justice to warrant the success of this appeal.
I also dismiss this appeal.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: For the
reasons given by my learned brother, HELEN MORONKEJI
OGUNWUMIJU, JCA with which I entirely and respectfully
agree, I too would dismiss this appeal.
It is beyond controversy that one of the principal duties of a
banker to its customer is to maintain a complete
secrecy/confidentiality of the information about a
customer’s account from the day the account is closed and
is no longer operated. It is one of the implied terms of
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contract between the customer and the banker which is not
restricted to the account alone but also to any other
information which comes to the knowledge of the banker
about the customer in the course of their contractual
relationship. However the duty of the banker to maintain
secrecy/confidentiality of the status of the account and any
other information relating thereto is not absolute. It is a
qualified duty. In other words, it is subject to a number of
exceptions which were established by the English case of
TOURNIER V. NATIONAL PROVINCIAL AND UNION
BANK OF ENGLAND (1924) 1 KB 461 AT 472 as
follows:
(a) “Where disclosure is under compulsion of law.
(b) Where there is a duty to the public to disclose.
(c) Where the interests of the bank require disclosure.
(d) Where the disclosure is made by express or implied
consent of the customer”
These exceptions which are referred to as Tournier’s
principles still holds good today as they have been
confirmed in several other cases. See TURNER V. ROYAL
BANK OF SCOTLAND PLC (1999) LLOYD’S LAW REP.
BANKING 231 AT 234, CHRISTOFI V. BARCLAYS
BANK PLC (2000) 1 WLR 937 AT 946,
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OCEANIC BANK PLC VS. OLADAPO (2012) LPELR-
19670. We are concerned here with the first exception.
The banker would be justified and is in fact under a duty to
disclose information relating to a customer’s account where
the law or Statute requires the banker to so do. Disclosure
under compulsion of the law is not limited to a situation
where a Statute requires the bank to disclose information
about a customer’s account, it extends to an order of Court
to disclose the state of a customer’s account, the banker is
bound to disclose the state of the customer’s accounts. In
BARCLAYS BANK PLC V. TAYLOR (1989) 3 ALL ER.
563, i t was contended that a banker’s duty of
secrecy/confidentiality included the duty to resist any order
made by a lawful authority to look into the affairs of the
customer and the bank was under a duty to inform the
customer about the order. The English Court rejected that
contention on the ground that such duty cannot be implied
into the banker and customer relationship. See also
ROBERTSON V. CANADIAN IMPERIAL BANK OF
COMMERCE (1995) 1 ALL ER 824. The argument of the
appellant’s counsel that a disclosure of all
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the account details of the judgment debtor would be a
breach of its duty of secrecy/confidentiality must be
rejected. A banker has no option than to disclose
particulars of its customer’s accounts when it is compelled
to do so by the Court.
Reliance of the appellant on lack of specific account details
must also be rejected because the nature, number and the
amount of money standing to the credit of the judgment
debtor in its account with the appellant are matters within
the knowledge of the appellant which must be disclosed on
the order of Court to enable the Court to determine
whether or not the judgment debtor has money in the
custody of the garnishee and whether such money is
sufficient to satisfy the judgment debt. That was the
position of this Court in OCEANIC BANK PLC VS.
OLADAPO (SUPRA) and it remains unchanged.
For these and other reasons ably stated in the lead
judgment, I too dismiss the appeal. I abide by the other for
costs made in the lead judgment.
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Appearances:
N.N. Onuzuruike For Appellant(s)
C.I. Okafor For Respondent(s)
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