Zenith Bank V. George C. Igbokwe & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: (Delivering the Leading Judgment)

This is an appeal filed by the Appellant against an Order of Garnishee Absolute given by the learned trial judge Hon. Justice J.A. Oyakhirome of the High Court of Justice, Benin City, on the 28th day of September, 2009.

In the said Order, the learned trial judge ordered the Appellant who was the Garnishee in the proceedings before it to pay the sum of N7,000,000 (Seven Million Naira) being the judgment debtors’ funds kept in Current Account Numbers 6014704681 and the fixed deposit Account 2173701278 maintained by the judgment debtor with the Appellant. The facts that led to this appeal are as follows:

The Respondent herein as a plaintiff in the main suit commenced by way of the undefended list procedure had obtained judgment in his favor for the sum of N7,000,000.00 (Seven Million Naira) against the judgment debtor. The said judgment was based on the Respondent’s claim for his professional fees as a legal practitioner for his representation and settlement of a judgment award of the sum N27,000,000.00 (Twenty Seven Million Naira) against Guinness Nigeria Plc.

Armed with this judgment, the respondent traced the judgment debtor’s funds to the appellant herein. He identified two accounts, specifically the current account number 6014704631 and the fixed deposit account number 2173701278 where he claimed the judgment debtor had over N7 million naira. The respondent herein commenced garnishee proceedings against the appellant herein to attach the funds in the said accounts.

On the 18th day of June 2009, the learned trial judge granted the Garnishee Order Nisi and the appellant herein was ordered to show cause within 14 days why the Order Nisi should not be made absolute. However, the appellant took no steps to appear in court and show cause why the Order Nisi should not be made absolute within the time given by the trial court. The matter was adjourned to 18th June, 2009.

The enrolled Order was served on the garnishee on 17th of June 2009. The garnishee did not appear in court on the 18th of June and the learned trial court adjourned the matter further to the 9th day of July 2009 to enable the garnishee have more time to respond. Fresh hearing notice was also ordered.

On the 9th of July 2009, the garnishee did not appear apparently because of non-service of the hearing notice and the learned trial judge further adjourned the matter to the 27th day of July 2009 and ordered another hearing notice to issue. The hearing notice was duly served but again, the garnishee failed, refused and/or neglected to file any process showing cause or even appear in court. Accordingly on the 28th of September, 2009, the learned trial court judge made the order of garnishee absolute.

The appellant admitted that due to administrative lapses it failed to show cause but claimed that it tried to obey the order absolute thereafter. However, after a look at its banker’s books, it discovered that the judgment debtor did not have up to the N7,000,000.00 (Seven million naira) in the Current and Fixed Deposit Accounts of the judgment debtor. The Appellant filed stay of execution at the trial court which was heard and refused. Having no other recourse, the appellant filed this appeal against the Garnishee Order Absolute.

The sole issue identified for determination by the appellant in the Appellant’s brief settled by Mr. J.O. Odion and filed on 11/4/2012 which was deemed filed by this court on 18/2/2013 is set out below:

Whether the Garnishee Order absolute can be enforced against the Appellant herein (the Garnishee) when the judgment debtor does not have funds in the accounts attached by the said Order?

The Respondent’s brief settled by G.C. Igbokwe was filed on 2/4/2013. Therein learned counsel also identified a sole issue for determination couched as follows:

Whether the learned trial judge has the duty of satisfying himself that there was sufficient funds in the judgment debtors account before making the garnishee Order nisi absolute.

At the hearing of this appeal on 5/11/2013, the appellant’s counsel, Mr. Igbokwe raised a preliminary objection to the hearing of the appeal. The said objections and the hearing in respect of which were embodied in the respondent’s brief which was adopted. While counsel withdrew the first leg of objection, in the best practice of the Bar having realized it was misconceived, he relied on the second leg of objection and urged this court to uphold the second leg of objection, and to dismiss this appeal.