Zenith Bank PLC V. Chief Godwin Omenaka & Anor (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIODELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision contained in the ruling of the High Court of Adamawa State in Suit NO: ADSY/1/2014: Chief Godwin Omenaka v. Adamawa State Government & Anor., delivered on 14/10/2015 by Ambrose D. Mammadi J., in which the Order Nisi made against the Appellant as Garnishee was made absolute in satisfaction of a judgment awarded in favor of the 1st Respondent on 10/5/2012 in Suit No: ADSY/83/2007: Chief Godwin Omenaka v. Yola North Local Government Council & 4 Ors to the tune of N101,079,000.00.

The 1st Respondent who was the judgment creditor had by a Motion Exparte filed on 9/1/2014 sought and obtained the Oder of the Court below granting a Garnishee Decree Nisi against the Appellant and the Appellant was ordered to show cause. The Appellant upon service of the Garnishee Order Nisi on it, filed an affidavit to show cause why the Garnishee Order should not be made absolute.

The 1st Respondent joined issue with the Appellant and after hearing the parties, the Court below held that the Appellant had failed to show cause why the Garnishee Order Nisi should not be made

absolute and proceeded to make the Garnishee Order absolute against the Appellant. See pages 3-6; 33-47; 48-49; 72-83 and 84-100 of the Record of Appeal.

The Appellant was dissatisfied with the said ruling and had appealed against it vide a Notice of Appeal filed on 26/10/2015 on two grounds of appeal. The Record of Appeal was duly transmitted to this Court on 16/11/2015. The Appellant’s brief was duly filed on 23/12/2015. The 1st Respondents brief was duly filed on 10/2/2016. The 2nd Respondent did not file any brief.

At the hearing of the Appeal on 16/2/2016, A. B. Babakano, Esq., learned counsel for the Appellant adopted the Appellant’s brief and urged the Court to allow the appeal and to set aside the ruling and order absolute made by the Court below and to discharge the Appellant.

On their part, C. O. Ezenwelu Esq., learned Senior counsel for the 1st Respondent with Uche Nwigwe, Esq., adopted the 1st Respondent’s brief and urged the Court to dismiss the appeal for lacking in merit and to affirm the ruling and order absolute made against the Appellant by the Court below. M. A. Umar, Esq., Learned State Counsel 1 for the 2nd Respondent who did not file

any brief told the Court they did not file any brief since Garnishee proceedings is strictly between the Garnishor/Creditor and the Garnishee.

At the Court below, the Appellant as Garnishee ordered to show cause, had filed an affidavit to show cause deposing inter alia thus:”4. That the order was for the Garnishee to show cause why a Garnishee order absolute should not be made attaching that alleged funds or monies belong to the judgment debtor in custody or possession of Garnishee in accounts Nos. 6013912703, 6013912022, and 601392006 for the purpose of satisfying the judgment debt in this matter and for the cost of the application.

5. That the accounts belonging to the judgment debtor, Adamawa State Government, which the Garnishee order Nisi sought to attach are accounts which has the following balances as at the date the order Nisi was served on the Garnishee Bank:

i. Account No. 6013912022 (Nuban No. 1011247747) has a balance of N96,658,991.94 DR.

ii. Account No. 6013922006 (Nuban No. 1011247792) has a debit balance of N1,566,739.96 DR.

iii. Account No. 6013912703 (Nuban No. 1011325467) has a credit balance of N3,587,651,297.71 CR.

?6. That I also know as a fact