Access Bank PLC V. Adesoye Holdings Limited & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SIDI DAUDA BAGE, J.C.A. (Delivering the Leading Judgment)

This is an appeal from the ruling of the Investment and Securities Tribunal sitting at Lagos delivered on 27th July, 2011 where in the said Tribunal granted garnishee order absolute following an application dated 16th May, 2011 at the Tribunal by the judgment Creditor/Respondent, 1st Respondent.

The summary of the facts of this case is as follows:

The first Respondent by an Ex-parte motion dated 16th May, 2011 sought a garnishee order nisi attaching all the funds, shares and stocks standing to the creditor of the judgment Debtor/Respondent (“the 2nd Respondent”) with the garnishee (“the Appellant”) for the purpose of satisfying the judgment entered in favour of the first Respondent on 3rd May, 2011.

The Appellant herein in the Tribunal below field an affidavit dated 8th June, 2011 to show cause why such funds, stocks and/or shares if any, should not be attached. The 1st Respondent herein filed a counter affidavit with exhibits dated 23rd June, 2011. On 29th June, 2011, the Appellant filed a further and better affidavit with exhibits in further response to the 1st Respondent’s counter affidavit.

In a ruling dated 27th July, 2011, the Tribunal granted the garnishee order absolute (see pages 120 – 126 of the record). The Appellant being dissatisfied with the said ruling filed a notice of appeal dated 21st September, 2011 [see pages 1 – 5 of the supplementary record).

ISSUES FOR DETERMINATION

The Appellant submit that having regard to the grounds of appeal filed by the Appellant, the issues which arise for determination are as follows:

1) Whether the Honourable Tribunal had jurisdiction to grant the ex-parte application for garnishee order nisi and/or make the garnishee order absolute generally or on the particular circumstances of this case.

2) Whether the Honourable Tribunal was right in granting the garnishee order absolute without taking cognizance of the zero balance in the subject Account number 0101614059 purchased by Assets Management Corporation of Nigeria (AMCON).

3) Whether the Honourable Tribunal rightly held that there was no proof of the judgment Debtor’s (2nd Respondent) indebtedness to the Appellant in making the garnishee order absolute.

The 1st Respondent on the other hand formulated the following two (2) issues for determination, and they are as follows:

1) Whether the Lower Court had jurisdiction to entertain garnishee proceedings.

2) If the answer to the issue No. 1 above is positive, whether the Lower Court was right in making the garnishee order absolute having regard to circumstances of the evidence before the Court.