CASE REVIEW: Guaranty Trust Bank Plc V. Engr. Musa Bamanga Tafida & Anor (2021) LPELR-56131(CA): A Watershed In Garnishee Proceedings?

Corpus juris Nigeriana does not suffer paucity of decided cases on post-judgment legal contestations. Garnishee proceedings is one of such post-judgment contestations that has gained renewed notoriety, and the law reports (print and electronic) are awash with appellate decisions ensuing from such proceedings. “The relative convenience and efficacy of garnishee proceedings as a process of enforcing monetary judgments commend it as the option of first resort for judgment creditors and their legal counsel. But the severely limited scope of garnishee proceedings is the subject of a great deal of misapprehension, and its attractiveness is fast becoming its bane in Nigerian jurisprudence”. With these opening words, Hon. Justice Peter O. Affen, JCA delivered on 8^th October 2021 the leading judgment in GTB v TAFIDA & ANOR: a judgment laden with profound judicial pronouncements and dicta, which constitutes, quite arguably, a watershed in the jurisprudence of garnishee proceedings in Nigeria.

Facts of the Case: The Appellant (GTB), in her affidavit to show cause before the High Court of Kaduna State, requested for further particulars of the judgment debtor to enable her isolate the judgment debtor as there exist several customers in her data base with similar name as the judgment debtor. The 1^st Respondent (judgment creditor) neither filed a counter-affidavit nor further affidavit in reaction to the Appellant’s affidavit to show cause, but contended viva voce on the return date that the Appellant ought to have resorted to the judgment debtor’s Bank Verification Number (BVN) to ascertain the proper identity of the judgment debtor. Notwithstanding that no particulars of specific nature (such as the judgment debtor’s account number, signature specimen, BVN, photograph or address) were provided in the ex parte application for garnishee order Nisi, the trial court upheld the 1^st Respondent’s contention and decreed an order absolute. The Appellant was ordered to pay the judgment debt of N35m to the 1^st Respondent. Being dissatisfied, the Appellant lodged an appeal at the Court of Appeal (Kaduna Division). In setting aside the decision/order absolute, his lordship, P. O. Affen JCA made illuminating pronouncements with far-reaching implications for trial lawyers, the courts, the banking institution, legal scholars, the legislature and members of the litigating public.

Reviewing the trial court’s findings/conclusion to the effect that the Appellant ought to have relied on BVN to decipher the identity of the judgment debtor out of its numerous customers with similar name, Affen JCA noted that no BVN was supplied and queried: “How can BVN settle the issue of identity of any of the customers with similar names? The answer is flying in the wind, and I take the considered view that the lower court ought to have been a lot more circumspect in order to be reasonably assured, nay satisfied, that the Appellant 13^th Garnishee) was actually indebted to that particular judgment debtor [i.e. that the judgment debtor maintains an account with the garnishee] before recording a garnishee order absolute.’ His Lordship pointed out that “the burden to supply necessary materials showing that the Appellant was indebted to the judgment debtor lies on the 1^st Respondent but not the Appellant; and given the confidential nature of the banker-customer relationship, no legal duty is imposed on the Appellant to disclose the identity and other details of its several customers with similar names as the judgment debtor”.

Calling in aid ACCESS BANK PLC v. CHIDI OBIEFUNA (2020) LPELR-49855(CA) where it was held that it is only when a particular customer’s BVN Number is known that anyone interested in knowing his accounts can trace them, Hon. Justice Affen JCA distanced the court from the proposition that the confidential nature of the banker-customer relationship prevents judgment creditors from having ready access to bank details of judgment debtors, and deplored the “growing tendency to commence garnishee proceedings against all banks licensed by the Central Bank of Nigeria to operate in the country as in the instant case where nineteen banks were listed as garnishees”. Hear his Lordship: “[T]hat does not seem to me a valid basis for courts of law to condone the insidious practice of initiating garnishee proceedings against all banks operating in Nigeria merely on the say-so of a judgment creditor that the judgment debtor maintains an account(s) with the garnishees without providing any basis for the assertion. The right of a judgment creditor to recover a money judgment by means of garnishee proceedings is not at large but one that lies within defined parameters. Indeed, ‘the terrain of garnishee proceedings is not that much loose and free of any duty, rather it is well guarded by conditions inherent in section 83(1) of the Sheriffs and Civil Process Act. In what is essentially a re-think of the prevailing practice on garnishee litigation, the Appeal Court jurist admonished that “the judgment creditor’s cause of action under section 83(1) SCPA is one that is severely limited”, insisting that the basic premise of garnishee proceedings is that it can only lie against a debtor to the judgment debtor, hence a judgment creditor has no right whatsoever to proceed against any person who is not shown to be indebted to the judgment debtor in the supporting affidavit. There is no ‘actionable wrong’ where the garnishee is not indebted to the judgment debtor, and the judgment creditor is not at liberty to proceed against a third party (including a bank) that is not shown to be indebted to the judgment debtor.

Affen JCA underscored the intendment of s. 83(1) of the Sheriffs and Civil Process Act (SCPA) to the effect that the affidavit supporting the application for Order Nisi must disclose the fact of indebtedness of the third party to the judgment debtor, and not merely that the third party is likely to be indebted, thereby re-awakening the courts to its duty to consider thoroughly applications for garnishee order Nisi. Commenting on the slim nature of cause of action in garnishee proceedings, his Lordship was emphatic: “A judgment creditor does not have an untrammelled right action to proceed against any person who catches his fancy: he is only entitled to sue a person indebted to the judgment debtor. Prima facie, suing all banks operating in the country is a clear pointer to the fact that the judgment creditor is unsure of the bank(s) indebted to the judgment debtor and the bank(s) not so indebted. Such an action is a fishing expedition by the judgment creditor initiated in the hope that one or more of the banks could be caught by his dragnet. It is hardly necessary to state that this is prone to capricious abuse and ought to be reined in by the eternal vigilance of the courts”.

The judgment weighed the imperative of deploying garnishee proceedings in aid of successful litigants against the ‘gratuitous burden’ foisted on garnishees in terms of litigation costs, and sensitised judgment creditors and their lawyers to strive, at the very minimum, to show that a judgment debtor maintains an account with a particular bank before naming it as a garnishee, insisting that: “It seems to me therefore that listing all banks operating in the country as garnishee order nisi ought to be refused; or granted if and only if, the applicant gives an undertaking as to damages. The far-reaching implications of allowing all banks operating in this country to be dragged to court willy-nilly to answer to garnishee proceedings at the instance of every litigant who obtains a favourable money judgment from all courts in Nigeria can only be imagined … allowing this unwholesome practice to gain traction without any checks is to overstretch the banks unjustifiably by imposing on them the gratuitous burden of defending a deluge of farfetched garnishee proceedings day after day from court to court across the entire length and breadth of the country with grave implications for our economy that is already being asphyxiated on many fronts”.

Upon a calm consideration of samples of applications for garnishee order Nisi through the District Courts to the High Courts often laden with obvious deficits, one cannot but agree with the compelling logic of the judgment under review. Trial courts are therefore enjoined to scrutinise affidavits in support of applications for order nisi to ensure that a minimum of particulars of judgment debtors (such as name, signature specimen, address, photograph) are supplied. Members of the public, parties to commercial transactions and their advisors ought also to be alert in gathering salient information in course of dealings for ease of satisfying the requirements of s. 83(1) SCPA in the event of successful litigation. What is more, banks may now seriously consider seeking redress when listed in garnishee proceedings that turn out to be mere ‘fishing expedition”.

All things considered, GTB v. TAFIDA & ANOR is a salutary decision that contextualises what constitutes a competent application for garnishee order nisi going forward, and illuminates our jurisprudence on garnishee proceedings.

– Dr. Sonny Ajala is a Senior Advocate of Nigeria.

Disclaimer: This article is entirely the opinion of the writer and does not represent the views of The Whistler.