Guaranty Trust Bank PLC V. Innoson Nigeria Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the order absolute made by the Federal High Court sitting at Ibadan, presided over by Shakarho, J. on 29th July, 2011 against the Appellant and two others (Zenith Bank PLC and Afribank (now Mainstreet Bank).

The trial court ordered the banks to release from the Nigerian Customs Service Board (the 1st Judgment debtor’s) account the sums in those accounts in satisfaction of the judgment debt which stood at N2, 048,737,443.67 (Two Billion, Forty-Eight Million, Seven Hundred and Thirty Seven Thousand, Four Hundred and Forty Three Naira, Sixty Seven kobo) as per the Judgment creditor’s further affidavit No. 3 of 8th June, 2011.

The background facts on the Appellant’s part are that the Respondent in this case obtained judgment in the sum of N700,220,000.00 against the Nigerian Customs Service Board, thereafter the respondent obtained a garnishee order nisi against the Appellant and other banks named above. The order nisi was for N700, 220,000.00, which was served on the Appellant, the Appellant filed 2 affidavits to show cause, the first was filed on 27/9/11, where the Appellant disclosed that only the sum of N468.50 was standing to the credit of the Nigerian Customs Board (judgment debtor).

The Statement of Account of the “Customs Service” was attached as an exhibit to the affidavit to which the respondent filed a counter affidavit stating that there was no full disclosure as accounts existed in other names. The Appellant conducted further search using the name “Customs Service Board” where another account in the above name was discovered.

The Appellant thereafter filed a further affidavit to show the new information but, also disclosed in the affidavit that the funds in the said account do not belong to the Customs Service Board but, that the funds belong to the Federal Government and was remitted daily to the Federation Account. It was also disclosed that the balance in the said account was N4, 238,514.64 which was incapable of being Garnisheed since it was money belonging to the Federal Government and not the Customs Service Board.

The trial court made the order absolute ordering the Appellant to release funds from the account amounting to N2, 048,737,443.67 (2.04 Billion) despite the fact that the judgment sum was for N700 Million and there was no evidence that Appellant had 2.04 Billion Naira in its account which belonged to the Customs Board.

On the Respondent’s part, it was contended that the trial court gave judgment in favour of the Respondent in the sum of N700, 220,000.00 (Seven Hundred Million, Two Hundred and Twenty Two Thousand) plus 22% interest per annum on the judgment debt from the date of commencement of the suit until satisfaction of the judgment debt.

It is against this that the Appellant appealed being dissatisfied with the decision.

There were originally two (2) grounds of appeal with four (4) additional grounds of appeal filed, from which the following issues were distilled for the determination of this appeal. They are:

“(A) Whether from the law relating to garnishee proceedings, the learned trial judge was right to have made the order absolute against the Appellant.

(B) Whether from the affidavit evidence placed before the court there was evidence to show that funds existed to the benefit of the Customs Service Board to the tune of 2 billion Naira.

(C) Whether the Appellant did not make a disclosure as required by law.”

In response, the respondent raised a preliminary objection to the Appellant’s grounds of appeal in what he termed the 1st Notice of Appeal. In alternative argument the learned counsel to the respondent raised a sole issue for the determination of this appeal. That is: