Zenith Bank PLC V. Alhaji Manu Kano & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Ruling of the High Court of Justice Adamawa State delivered on 18th November, 2014 in Suit No. ADS/50m/2014 wherein it made a Garnishee Order Absolute against the Appellant/1st Garnishee in satisfaction of a Judgment awarded in favour of the 1st Respondent in Appeal No: CA/YL/11/2013 to the tune of N21,757,397.00.?

In an attempt to realize the fruit of this Judgment, the 1st Respondent applied to the Lower Court for a garnishee order nisi against the Appellant as 1st Garnishee and the 2nd Respondent as the 2nd Garnishee. The application was duly granted and the two Garnishees were ordered to show cause why the order nisi should not be made absolute.

In response, the Appellant filed a 13 paragraph affidavit annexed to which were five exhibits showing cause why the order nisi should not be made absolute against it. The 2nd Garnishee/Respondent, on its part, did not file any process showing cause nor did it make any submissions at the hearing of the application tending to show that it did not have any funds belonging to the Judgment Debtors

upon which a valid garnishee order absolute could be made. At the close of hearing, the learned trial Judge made a general and joint order absolute against both Garnishees on 18th November, 2014. Dissatisfied, the Appellant filed a Notice of Appeal on 20th November, 2014 wherein it complained on three grounds.

At the hearing of the Appeal on 29th October, 2015, learned Counsel for the Appellant, S. N. Nzonzo Esq. adopted and relied on the Appellant’s Brief of argument dated 22nd January, 2015 and filed on 3rd February, 2015. He urged the Court to allow the Appeal and set aside the order absolute. Even though there was evidence of service of all the Court processes, inclusive of the Appellant’s Brief of argument and hearing notices on the 1st and 2nd Respondents to the Appeal, they neither filed briefs of argument nor did they put in an appearance in any manner whatsoever. The Appeal was therefore un-contested and heard on the Appellant’s Brief alone.

In the Brief of argument, learned Counsel for the Appellant formulated a lone issue for determination, to wit:

Whether the trial Court was right in granting a

general/joint garnishee order absolute against the Garnishees despite the 1st Garnishee/Appellant filing and showing sufficient cause as to why an order absolute should not be made against her, whereas the 2nd Garnishee/Respondent neither showed any cause as to why the order nisi should not be made absolute against her nor advance any argument as to having insufficient funds to unilaterally settle the Judgment debt. (Grounds 1, 2 and 3)

?In arguing the Appeal, Counsel submits that the 1st Respondent sought to realize the fruit of his Judgment delivered by this Court on 27-03-14 and thus, applied to the Lower Court for an order to arrest the money of the Judgment Debtors with the Garnishees in satisfaction of the Judgment Debt. The Lower Court made an order nisi which was served on the Garnishees to show cause why the order nisi should not be made absolute on the return date of 30-10-14. The Appellant filed a 13 paragraph affidavit annexed to which were five exhibits to in order to show cause as required of it. Counsel relied on Order 43 Rule 5 of the Adamawa State High Court (Civil Procedure) Rules, 2013; and Section 87 of Sheriffs and Civil

Process Act.

Learned Counsel submits that the 2nd Respondent however did not file any process or advance any argument at the hearing as to why the order nisi should not be made absolute against her, neither did she complain of any lack of funds of the Judgment Debtors with 2nd Garnishee to satisfy the Judgment debt. Counsel relied on Order 43 Rule 4 (1) Adamawa State High Court (Civil Procedure) Rules 2013 and Section 86 of Sheriffs and Civil Process Act.

He therefore submits that the learned trial Judge erred when he relied on only Paragraph 7 of the Appellant’s affidavit showing cause, in isolation of the other paragraphs, particularly paragraphs 8 to 12 and Exhibits Z1 to Z5, in proceeding to issue an order absolute against both Garnishees.

Counsel submits that the Appellant stated in paragraphs 8 and 12 of her affidavit that the 1st Judgment Debtor is indebted to her, and that based on the agreement between them, the funds available in the two accounts with her had been set-off against the debt. He further submits that the law obligates the learned trial Judge not only to consider all paragraphs of the affidavit, but also to rely on the