Ecobank Nigeria PLC V. Guaranty Trust Bank PLC & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Lagos State; coram Coker J., delivered on 12th February, 2014.

On the 10th of June, 2013, judgment was entered against the 2nd and 3rd Respondents as 1st and 2nd Defendants under Order 11 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2012 as per the endorsement on the 1st Respondent’s Writ of Summons and Statement of Claim dated 13th of September, 2012. By a Motion ex-parte dated 2nd September, 2013, the 1st Respondent commenced Garnishee Proceedings against the Appellant as the 10th Garnishee therein with sixteen other Garnishee Banks.

Upon service of Garnishee Order Nisi dated 23rd October, 2013 granted by the lower Court on the Appellant on 4th November, 2013, the Appellant filed Affidavit to show cause dated 18th November, 2013; a Further Affidavit to show cause dated 16th January, 2014 as well as Further and Better Affidavit to show cause dated 16th January, 2014. The learned trial judge delivered a Ruling and granted Garnishee Order Absolute against the Appellant. Aggrieved by the

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decision, the Appellant filed an appeal vide a Notice of Appeal dated and filed 20th March, 2014 on four (4) grounds.

As required by the rules of practice in this Court, briefs of argument were filed by the learned counsel in support of the respective positions of the parties in the appeal. The Appellant’s brief settled by F.B. Odesanya Esq., is dated and filed 23rd September, 2014 but deemed 4th June, 2015. While the Reply brief is dated and filed 4th June, 2015. Three issues were identified by the Appellant for the determination of this appeal thus:

1. Whether in view of the facts contained in all three Affidavits to show cause in this Garnishee Proceedings, the Appellant is entitled under Section 87 of the Sheriff and Civil Process Act to dispute liability to the Judgment Debtors.
2. Whether the funds in the accounts of the Judgment Debtors have been attached by a Garnishee Order Nisi served after two transactions have occurred on the Judgment Debtors account.
3. Whether in view of documentary evidence on the two transactions contained in the three Affidavits to show cause, the Appellant could be said to have colluded with the

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Judgment Debtors.

Respondent’s Brief of Argument is dated and filed 4th April, 2015. It was settled by Lekan Oni Esq., of Benjamin Oni & Associates. A sole issue was nominated for the determination of this appeal thus:

1. Whether having regard, to the record of proceedings and the facts placed before the Court, the learned trial Judge did hear the Appellant on its dispute of liability and facts presented, in respect of same before making the order absolute attaching the funds in the account of the Judgment debtor with the Appellant.

Meanwhile, 1st Respondent vide the Respondent’s brief raised preliminary objection to the hearing of the appeal on the ground, inter alia that the record of appeal is incomplete as it does not contain the record of proceedings before the Court.

Arguing the preliminary objection, 1st Respondent’s counsel submitted that the crux of the Appellant’s appeal is based on the proceedings before the trial Court and whether and what arguments were taken before the trial Court before the order absolute was made in the proceedings. It is the submission of counsel that the record of proceedings before the trial

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Court is not included in the records of appeal, hence incomplete record. He cited CHIEF THOMAS EKPEMUPOLO & ORS v. GODWIN EDREMODA & ORD (2009) 32 WRN 1; ALUKO v OGUNGBEMI (2008) ALL FWLR (PT 937) 179 AT 198; AULT & WILBORD (NIGERIA) LIMITED v NIBEL INDUSTRIES LIMITED (2010) 11 NWLR (PT 1120) 489 AT 496 before urging that the appeal be struck out.