Access Bank Plc V. Nkoyo Ekpe Bassey (2016)

LawGlobal-Hub Lead Judgment Report

PAUL OBI ELECHI, J.C.A. 

This is an appeal against the Judgment of the High Court of Akwa Ibom State coram Honourable Justice Bassey F. Etuk delivered on the 23rd April, 2012 in suit No. HOR/2/2012. In the said suit, His Lordship entered Judgment in the sum of N150,000.00 plus the cost of N3,000.00 in favour of the 1st Respondent against the 8th Respondent of which the commissioner of Police (2nd Respondent) was the 6th Respondent at the Lower Court.

On the 15th February, 2013, the Lower Court at the instance of the 1st Respondent as Judgment Creditor, granted an order Nisi, garnishing the bank account numbers 0003899348 and 0003905577 said to be held at the Appellant bank by the 5th, 6th, 7th and 8th Judgment Debtors for the Judgment sum of N153,000.00, plus the cost of the Garnishee proceeding at another N100,000.00, thus totaling N253,000.00. The Garnishee also covered certain accounts said to be held by the same 6th – 8th Judgment Debtors at First Bank of Nigeria PLC (who was the 1st Garnishee but this appeal however is only concerned with the 2nd Garnishee – Appellant.

On the 21st March

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2013, the Appellant herein as Garnishee became aware of the proceedings for the first time when it was served with the Order Nisi. As a result the Appellant filed a Garnishee’s Affidavit to show cause, showing, in summary that of the two account number 0003899348 was in debt to the tune of N284.21, while the second account number 0003905577 had since been closed by the 2nd Respondents instructions. The affidavit went further to exhibit the statement of account number 0003899348 as Exhibit AB¹.

The 1st Respondent on his own filed a counter-affidavit as Judgment Creditor contending therein that the account number 0003905577 was active and that the 2nd Respondent herein had never written to the Appellant to close that account. The Appellant, being thus challenged responded with a further affidavit to show cause wherein it was reiterated that the 2nd Respondent had indeed instructed the closure of the account and, this time exhibited the letter instructing the closure of Exhibit AB².
Eventually on the 18th June, 2013, their respective Counsel adopted their processes. While the Appellant urged the Court to discharge the Order Nisi, the 1st Respondent

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urged the Court to make the Garnishee nisi absolute.

On the 5th July, 2013, the trial Court delivered a Ruling and made the Order of Garnishee Nisi absolute. The Appellant has therefore brought this appeal seeking for the reversal of the Courts order.

From the grounds 1 & 2 of the Notice of Appeal, the Appellant distilled one issue for determination thus:
“Was the Court below right when despite all the evidence before it, it held that the Appellant had not honestly made disclosures to guide the Court in determining whether or not the Order Nisi should be set aside and that “sufficient” reason had not been made out by the Appellant, and proceeded on that basis to make the Order absolute”.

According to Learned Appellants Counsel, the Order absolute by the trial Judge is impossible to justify as per the evidence on record in the two bank accounts herein before mentioned, Learned Appellant Counsel contended that this appeal is straight forward on its own. This, he stated may revolve around a few questions: Did the Appellant make honest disclosures of the Garnishee proceedings? Did it discharge its legal burden in this matter?

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Did it satisfactorily explain its position vis-a-vis the accounts sought to be garnisheed? In the consideration of the Appellants Counsel, the Appellant discharged its legal burden and that the answers to the above questions are all in the affirmative. On that basis, he contended that the Learned trial Judge was wrong to have made the order absolute since the 1st Respondent asserted the existence of Account No. 0003905577, it was her duty to prove same as per Section 131 of the Evidence Act 2011 but she could not prove same. It was at that stage that the Order Nisi ought to have been discharged but the Court below did not do so even after the evidence adduced in its further affidavit and Exhibit AB².