FIDELITY BANK v. ONWUKA

CITATION: (2017) LPELR-42839(CA)

In the Court of AppealIn the Enugu Judicial Division

Holden at Enugu

ON THURSDAY, 4TH MAY, 2017Suit No: CA/E/661/2013

Before Their Lordships:

HELEN MORONKEJI OGUNWUMIJU Justice, Court of AppealJOSEPH TINE TUR Justice, Court of AppealMISITURA OMODERE BOLAJI-YUSUFF Justice, Court of Appeal

BetweenFIDELITY BANK PLC - Appellant(s)

AndCHIEF EMMANUEL EZE ONWUKA - Respondent(s)

RATIO DECIDENDI1. BANKING LAW - DUTY OF A BANK: General rule as to the duty of confidentiality a bank owes its customers and its exceptions

"It is beyond controversy that one of the principal duties of a banker to its customer is to maintain a complete secrecy/confidentiality of the information about a customer's account fromthe day the account is closed and is no longer operated. It is one of the implied terms of contract between the customer and the banker which is not restricted to the account alone but alsoto any other information which comes to the knowledge of the banker about the customer in the course of their contractual relationship. However the duty of the banker to maintainsecrecy/confidentiality of the status of the account and any other information relating thereto is not absolute. It is a qualified duty. In other words, it is subject to a number of exceptionswhich were established by the English case of TOURNIER V. NATIONAL PROVINCIAL AND UNION BANK OF ENGLAND (1924) 1 KB 461 AT 472 as follows:(a) "Where disclosure is under compulsion of law.(b) Where there is a duty to the public to disclose.(c) Where the interests of the bank require disclosure.(d) Where the disclosure is made by express or implied consent of the customer"These exceptions which are referred to as Tournier's principles still holds good today as they have been confirmed in several other cases. See TURNER V. ROYAL BANK OF SCOTLAND PLC(1999) LLOYD'S LAW REP. BANKING 231 AT 234, CHRISTOFI V. BARCLAYS BANK PLC (2000) 1 WLR 937 AT 946, OCEANIC BANK PLC VS. OLADAPO (2012) LPELR- 19670. We are concernedhere with the first exception. The banker would be justified and is in fact under a duty to disclose information relating to a customer's account where the law or Statute requires the bankerto so do. Disclosure under compulsion of the law is not limited to a situation where a Statute requires the bank to disclose information about a customer's account, it extends to an order ofCourt to disclose the state of a customer's account, the banker is bound to disclose the state of the customer's accounts. In BARCLAYS BANK PLC V. TAYLOR (1989) 3 ALL ER. 563, it wascontended that a banker's duty of secrecy/confidentiality included the duty to resist any order made by a lawful authority to look into the affairs of the customer and the bank was under aduty to inform the customer about the order. The English Court rejected that contention on the ground that such duty cannot be implied into the banker and customer relationship. See alsoROBERTSON V. CANADIAN IMPERIAL BANK OF COMMERCE (1995) 1 ALL ER 824. The argument of the appellant's counsel that a disclosure of all the account details of the judgment debtorwould be a breach of its duty of secrecy/confidentiality must be rejected. A banker has no option than to disclose particulars of its customer's accounts when it is compelled to do so by theCourt.Reliance of the appellant on lack of specific account details must also be rejected because the nature, number and the amount of money standing to the credit of the judgment debtor in itsaccount with the appellant are matters within the knowledge of the appellant which must be disclosed on the order of Court to enable the Court to determine whether or not the judgmentdebtor has money in the custody of the garnishee and whether such money is sufficient to satisfy the judgment debt. That was the position of this Court in OCEANIC BANK PLC VS.OLADAPO (SUPRA) and it remains unchanged."Per BOLAJI-YUSUFF, J.C.A. (Pp. 48-51, Paras. E-E) - read in context

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2. BANKING LAW - BANKER-CUSTOMER RELATIONSHIP: Nature of a banker/customer relationship"A bank is a debtor to its customer. In The Bankers' Liability, Revised edition, 2014 by Nkiru-Nzegwu Danjuma appears the following passage at pages 108 to 109:"As regards money deposited by the customer in an account with the banker, the nature of the banker and customer relationship is that of contract of debtor and creditor. The positionbecomes clearer when the customer asks for his money. As a result of an implied undertaking by the banker to repay the customer all or part of such deposit, the banker is a debtor for anamount deposited. If a valid repayment demand of the customer is not met by the banker, the customer may bring an action against it for breach of contract. The action will be against thebank and not against the bank manager. In Osawaye vs. National Bank of Nigeria Ltd. (1974) NCCR 474 the debtor and creditor relationship was restated thus:"The relationship between a banker and customer is one of debtor and creditor with the additional feature that the banker is only liable to repay the customer on payment beingdemanded. There is no obligation on the part of the banker or debtor to seek out his creditor, the customer and pay him: obligation is only to pay the customer or some person nominatedby the customer, when the customer makes a demand or gives a direction for payment."It is the receipt of money either from or on account of its customer that constitutes a banker into debtor of the customer. Thus, when a banker credits the account of a customer with acertain sum of money, the banker becomes a debtor to the customer to the extent of the credit. It is to be noted that the ordinary customer rank as an unsecured creditor in the liquidationof the bank.The concept of debtor and creditor in the banker and customer relationship are not static. The banker may in certain cases become the creditor, while the customer assumes the position ofa debtor. For instance, where a banker grants overdrafts to its customer and debits the customer's account with sum or value of the overdraft, the customer becomes a debtor to thebanker to an amount equal to the credit. Accordingly, after the reconciliation of the banker and customer's account, which party is the creditor, can sue if demand for payment is notcomplied with. The Supreme Court in Yesufu vs. African Continental Bank (supra) affirmed this legal position."Per TUR, J.C.A. (Pp. 39-41, Paras. E-F) - read in context

3. BANKING LAW - DUTY OF A BANK: General rule as to the duty of confidentiality a bank owes its customers and its exceptions"Appellant's counsel argued strenuously that without the account number of the judgment debtor, to reveal all account details of the judgment debtor amounts to a usurpation of thecontractual duty of care owed the judgment debtor by the Appellant and that the Appellant owes the judgment debtor a contractual duty of care and security of its account position.This argument of counsel is misguided. Mbaba JCA in Oceanic Bank Plc v. Oladepo (2012) LPELR-19670 rightly put the position of this Court as follows:"I have already stated in this judgment that the relevant particulars required by Section 83(1) of the Sherriff and Civil Process Act, for the purpose of garnishee proceedings, had beensatisfied by the 1st Respondent and that the Application at the lower Court was not speculative, simply because the account number and the exact amount to the credit of the judgmentDebtor were not stated by the 1st Respondent. Of course, the information as to the account number and the exact amount in the account, were information within the exclusive knowledgeof the Appellant and the 2nd Respondent, and by banking confidentialities, division of such information is not permitted to a 3rd party. The 1st Respondent was therefore not expected tohave such detail."Counsel's reliance on Emmanuel Agbanelo vs. Union Bank of Nigeria Ltd (Supra) is misconceived. In that case, the Appellant operated a current account in the name and style of EPACO(Nigeria) Marketing Company with one of the Respondent's branches in Warri. On the instruction of the Appellant, the Respondent issued a bank draft in favour of the manufacturer'spayable at the Respondent's branch in Surulere. Upon presentation of the draft by the manufacturers for payment, it was returned unpaid and endorsed '1st signature irregular'. Claimingthat these words endorsed on the draft were defamatory of him and that the draft was negligently refused, the Appellant instituted an action at the High Court and claimed damages.Upon appeal to the Supreme Court after the trial Court and the Court of Appeal decided against the Appellant, the Supreme Court held that a bank has a duty to a person on whose requestit has agreed to issue a draft to issue and honour such draft. In the discharge of that duty, it must show care to ensure that the banker's draft is properly issued and honoured. TheSupreme Court held that from the facts of the case, it was clear that the Respondent was in breach of the duty of reasonable care and skill it owed to the Appellant.This has nothing to do with the instant case. The duty of confidentiality owed a customer is certainly subject to an order of Court. It is firmly settled that an order of Court must be obeyeduntil such a time that the order is set aside.There is no doubt that a bank owes its customers a legal duty of confidentiality not to disclose information to third parties, a breach of which could give rise to liability in damages. Thisduty arises between a bank and its customer as soon as an account is opened and as a matter of fact, it continues even after the termination of the banker/customer relationship. Allinformation which include details of customers' accounts, their names and addresses obtained by virtue of the banker/customer relationship are covered by the duty of confidentiality andmust be protected from unauthorized access by a third party.However, there are exceptions to this duty of confidentiality owed a customer by the bank. This was ably laid down in the Locus classicus case of Tournier V. National Prudential Bank ofEngland (1923) All ER 550, (1924) 1 KB 461.The English Court held as follows:"In my opinion it is necessary in a case like the present to direct the jury. What are the limits, and what are the qualifications of the contractual duty of secrecy implied in the relation ofbanker and customer. There appears to be no authority on the point. On principle I think that the qualifications can be classified under four heads: (a) Where disclosure is under compulsionby law; (b) where there is a duty to the public to disclose; (c) where the interests of the bank require disclosure; (d) where the disclosure is made by the express or implied consent of thecustomer."The Code of Banking Practice produced by the General Assembly of Bank Chief Executives under the auspices of The Chartered Institute of Bankers of Nigeria has incorporated theseexceptions in Article 7 thereof. It is as follows:7.1. Banks will observe a strict duty of confidentiality about their customers (and former customers') affairs and will not disclose details of customers' accounts or their names andaddresses to any third party, including other companies in the same group, other than in the four exceptional cases permitted by the law, namely:7.1.1 Where a bank is legally compelled to do so;7.1.2 Where there is a duty to the public to disclose;7.1.3 Where the interests of the bank require disclosure; and7.1.4 Where disclosure is made at the request or with the consent (expressed or implied) of the customer.7.2 Banks will not use exception 7.1.3 above to justify the disclosure for marketing purposes of details of customers' accounts or their names and addresses to any third party, includingother companies within the same group.7.3 All banks should insist on their staff signing a 'Declaration of Secrecy' to guarantee the confidentiality of customer information.See also UBA V. CAC & Ors. (2016) LPELR-40569(CA). This Court held that the Appellant cannot hide behind the confidentiality veil to attempt to frustrate a legitimate exercise of thestatutory power granted to an agency or person under the law. It was held that confidential client information may be disclosed under Section 317 CAMA as well as the exercise of theCommission's general power to require provision of information and documents in discharging its functions pursuant to Section 7 of CAMA.In other words, one of the exceptions to the duty of confidentiality owed a customer by the bank is where there is a Court order compelling the disclosure of the account details or any otherinformation of a customer. Such Court order obviates the liability that a bank would ordinarily incur in the event of a breach of the duty of confidentiality. An Order Nisi is no less an order ofCourt and the Appellant is bound by it.At page 164 of the record, the trial Court held as follows:"The Government of Anambra State is known by everybody. No other institution is called Anambra State Government. The order nisi was directed to it. I therefore hold that the nameGovernment of Anambra State is sufficient enough for the 3rd Garnishee to act and obey the order nisi by furnishing the amount in the various accounts maintained by Government ofAnambra State."I agree with the learned trial judge that the Government of Anambra State is known by everybody as no other institution or body can be known as and called Anambra State Government. Itis an accepted matter of public knowledge of which this Court rightly takes judicial notice that Anambra State Government, being a juristic person duly recognized by the 1999 Constitutionis the only one capable of operating an account with the name Anambra State Government. This is a notorious fact which requires no proof.The law does not prohibit a judgment creditor who does not have the account numbers of a judgment debtor from instituting garnishee proceedings against a bank in whose custody themonies of a judgment debtor resides. Counsel for the Appellant made heavy weather of this issue and relied on Sections 83 & 87 in so doing. I have read the provisions and they aregenerously quoted in this judgment, I see nothing to support the argument of counsel in that regard.That was the point made by Mbaba JCA in Oceanic Bank v. Oladepo (Supra) to the effect that the Bank would not have disclosed to the Respondent the details of the accounts of thejudgment debtor. Only the Court can command that confidential information which it has done in this case."Per OGUNWUMIJU, J.C.A. (Pp. 15-22, Paras. A-A) - read in context

4. JUDGMENT AND ORDER - ORDER OF GARNISHEE: Implication of a garnishee order nisi"With the greatest respect, it is clear that there is an abysmal lack of understanding of the garnishee proceedings by learned Appellant's counsel.The order of Court was not an order absolute as counsel for the Appellant contends. While the other two garnishees (Access Bank Plc. and Diamond Bank Plc.) in obedience to the Courtorder, filed affidavits disclosing the accounts of the judgment debtor with them to show cause why they should not satisfy the judgment debt, the Appellant blatantly refused and resortedto legal games after the Order Nisi was served on it.?In fact, the Appellant submitted at paragraph 5.11 of the Appellant's Brief that Anambra State Government through its various Ministries and Departments keeps several accounts with thebanks and without specific account particulars, certain accounts 'may be wrongly attached with the concomitant dangerous effect'. In one breath, the Appellant claims it could not conducta search because there was not enough particulars, on another, the Appellant admits that the judgment debtor operates several accounts with the Appellant but the 'dangerous effect' ofcomplying with the order of Court prevents the Appellant from so doing. That is absolutely unacceptable.It has been reiterated by the Courts that it is not the duty or business of a garnishee to play the role of a defender or advocate for a judgment debtor by attempting to protect the money ofthe judgment debtor in its custody. By refusing to disclose the accounts of the judgment debtor, it is clear to me that the Appellant is doing its best to disobey an order of Court.?In sum, the order of Court appealed against is not an order absolute, it is an order mandating the Appellant to furnish the Court with the accounts operated by the judgment debtor with theAppellant. It does not automatically transmit to an order of Court attaching the funds for execution as it is under an order absolute. What it is, is an attempt by the Court to ascertainwhether such funds at the disposal of the Appellant belonging to the judgment debtor can satisfy the judgment debt which is the essence of the order nisi for the Appellant to showcause."Per OGUNWUMIJU, J.C.A. (Pp. 22-24, Paras. A-A) - read in context

5. JUDGMENT AND ORDER - JUDGMENT OF COURT: Proper tag to be given to determinations of the Supreme Court and the Court of Appeal"The legislative intention is that any determination by a Justice of the Supreme Court or the Court of Appeal is an "opinion" or a "decision." This is provided in Sections 294(2)-(4) and 318(1)of the Constitution of the Federal Republic of Nigeria, 1999 altered. The provisions are couched as follows:"(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice whodelivers a written opinion:Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or readby any other Justice whether or not he was present at the hearing.(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.(4) For the purpose of delivering its decision under this Section, the Supreme Court, or the Court of Appeal shall be deemed to be duly constituted if at least one member of that Court sitsfor that purpose.xxxxxxxxxxxxxxx318(1) "Decision" means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation."Per TUR, J.C.A. (Pp.24-25, Paras. D-E) - read in context

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6. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Nature of garnishee proceedings"It is beyond doubt that one of the methods by which liquidated money judgments can be enforced is by way of garnishee proceedings. Garnishee proceedings is defined in Black's LawDictionary as follows:A judicial proceeding in which a creditor (or potential creditor) asks the Court to order a third party who is indebted to or is bailee for the debtor to turn over to the creditor any of thedebtor's property (such as wages or bank accounts) held by that third party.Part V- Attachment of debts by Garnishee Order is the appropriate part of the Sheriffs and Civil Process Act which regulates this process. I will set out the relevant provisions necessary todetermine the issue under consideration. S. 83 provides as follows:83(1). The Court may, upon the ex parte application of any person who is entitled to the benefit of a judgment for the recovery or payment of money, either before or after any oralexamination of the debtor liable under such judgment and upon affidavit by the applicant or his legal practitioner that judgment has been recovered and that it is still unsatisfied and towhat amount and that any other person is indebted to such debtor and is within the State, order the debts owing from such third person, hereinafter called the garnishee, to such debtorshall be attached to satisfy the judgment or order, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnisheeshall appear before the Court to show cause why he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much there of asmay be sufficient to satisfy the judgment or order together with costs aforesaid.83(2). At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.S. 87 also provides as follows:If the garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining hisliability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.A garnishee proceeding can be described in two stages; the first stage is the process of getting an order nisi. The order nisi directs the garnishee to appear in Court on a specified date toshow cause why an order should not be made upon him for payment to the judgment creditor the amount of the debt owed the judgment debtor. This is usually done ex parte and limitedto the judgment creditor and the Court.The second stage is where on the return date the garnishee does not attend, or does not dispute the debt claimed to be due from him to the judgment debtor, the Court may, subject tocertain restrictions, make the garnishee order absolute under which the garnishee is ordered to pay to the judgment creditor the amount of debt due from him to the judgment debtor, orso much of it as is sufficient to satisfy the judgment debt together with the cost of the proceedings and cost of garnishee. This later proceeding is tripartite between the judgment debtor,judgment creditor and the Garnishee. This is because on the return date all parties must have been served and given an opportunity to dispute liability or pray that the order nisi bedischarged for one cause or the other as shown by any of the parties, particularly the garnishee. This is because the garnishee may dispute his liability to pay the debt. He will appear inCourt on the return date and dispute his liability by denying indebtedness to the judgment debtor.There is no doubt that a garnishee proceeding is a means of collecting a monetary judgment against a judgment debtor by ordering a third party (the garnishee) to pay money, otherwiseowed to the judgment debtor, directly to the judgment creditor. In UBN Plc. V. Boney Marcus Industries Ltd. & Ors. (2005) All FWLR (Pt.278) 1037 at 1046, garnishee proceeding wasdefined as a process of enforcing a money judgment by the seizure or attachment of the debts due or accruing to the judgment debtor which form part of his property available inexecution. It is in the hands of a third party whereby, the Court order is required to direct the third party to pay directly to the judgment creditor.By the Judgment Enforcement Rules, where any bank, in custody of the monies belonging to a customer who is a judgment debtor, is within the jurisdiction of the Court that has decided adebt as due to the judgment creditor against a judgment debtor (whom the bank is in custody of his monies), such monies or funds can be utilized in settlement of the judgment debt andenforced by such Court as immediately payable to the judgment debtor/customer.?In other words, a Garnishee proceeding is a process of enforcing money judgment by the seizure or attachment of the debt due and accruing to the judgment debtor, which forms part ofhis property in the hands of a third party for attachment. By this process, the Court is competent to order a third party in whose hands the property of the judgment debtor is, to paydirectly to the judgment creditor the debt due or accruing from him to the judgment debtor or as much as it as may be sufficient to satisfy the judgment and the costs of the proceedings.See Citizens Int'l Bank v. SCOA (Nig) Ltd (2006) 18 NWLR Pt.1011 Pg. 334.Thus, a garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor. It is sui generis and isunlike other proceedings for enforcement of judgment."Per OGUNWUMIJU, J.C.A. (Pp. 9-14, Paras. F-D) - read in context

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7. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Procedure for instituting garnishee proceedings"To "garnish" is "1. To warn (2) To extract money from prisoners." A "garnishee" is "a person who has been warned not to pay a debt to anyone other than the third party who has obtainedjudgment against the debtor's own creditor" hence "garnishee proceeding(s)" are "A procedure by which a judgment creditor may obtain a Court order against a third party who owesmoney to, or holds money for, the judgment debtor. It is usually obtained against a bank requiring the bank to pay money held in the account of the debtor to the creditor." See Osborn'sConcise Law Dictionary, 9th edition, page 181. Writes the learned authors of Black's Law Dictionary, 9th edition, page 749:"Garnish, Hist. Money exacted from a new prisoner by other prisoners or as a jailer's fee. This practice was banned in England in 1815.Garnish (Old French garnir "to warn" "to prepare"). 1. Hist. To notify or warn (a person) of certain debts that must be paid before the person is entitled to receive property as an heir. 2. Tosubject (property) to garnishment; to attach (property held by a third party) in order to satisfy a debt. 3. To notify (a person, bank, etc.) that a garnishment proceeding has beenundertaken and that the one receiving notice may be liable as stakeholder or custodian of the defendant's property. - Also termed garnishee...Garnishee ...A person or institution (such as a bank) that is indebted to or is liable for another whose property has been subjected to garnishment. - Also termed garnishee-defendant (asopposed to the "principal defendant," i.e., the primary debtor)..."In Choice Investments Ltd. vs. Jeromnimon (1981) 1 All E.R. 225, Lord Denning, M.R. held at pages 226-227 as follows:"The word "garnishee" is derived from the Norman French. It denotes one who is required to "garnish", that is, to furnish a creditor with the money to pay off a debt. A simple instance willsuffice. A creditor is owed 100 pounds by a debtor. The debtor does not pay. The creditor gets judgment against him for the 100 pounds. Still the debtor does not pay. The creditor thendiscovers that the debtor is a customer of a bank and has 150 pounds at his bank. The creditor can get a "garnishee" order against the bank by which the bank is required to pay into Courtor direct to the creditor - out of its customer's 150 pounds - the 100 pounds which he owes to the creditor.There are two steps in the process. The first is a garnishee order nisi. Nisi is Norman-French. It means "unless". It is an order upon the bank to pay the 100 pounds to the judgment creditoror into Court within a stated time, unless there is some sufficient reason why the bank should not do so. Such reason may exist if the bank disputes its indebtedness to the customer forsome reason or other. Or if payment to this creditor might be unfair to prefer him to other creditors: See Pritchard vs. Westminster Bank Ltd and Rainbow vs. Moorgate Properties Ltd. If nosufficient reason appears, the garnishee order is made absolute - to pay to the judgment creditor - or into Court: whichever is the more appropriate. On making the payment, the bank getsa good discharge from its indebtedness to its own customer - just as if he himself directed the bank to pay it. If it is a deposit on seven days' notice, the order nisi operates as the notice.As soon as the garnishee order nisi is served on the bank, it operates as an injunction. It prevents the bank from paying the money to its customer until the garnishee order is madeabsolute, or is discharged, as the case may be."See also Foley vs. Hill 9 E.R. 1002; Balogun vs. National Bank of Nigeria (1978) NNLR 63 at 69 and Union Bank of Nigeria Ltd. vs. Muroye (1990) NWLR (Pt.130) 69 at 77.If there has been any relationship between the appellant, namely the garnishee and the Anambra State Government (the judgment debtor), it is that of a banker and a customer, foundedon contract. In Banker and Customer by W.W. Wood, 3rd edition, Revised by James Russell appears at pages 14 to 15 the following write-up:"Primarily the relationship is one of contract. There is in the mere receiving of money to be credited to a customer's account the essential element of contract-namely, offer andacceptance: offer by the customer on his part of the money as a loan, despite the fact that the motive of deposit for safe keeping may be present, and acceptance of the money by thebank under the implied condition that it will be repaid on demand to the customer's order.When a person opens an account at a bank he does not, apart from a simple opening form, sign any document setting out the conditions on which his account will be kept. The relationshipbetween banker and customer has not been reduced to formal terms as it is in most other legal relationships - e.g., in a lease or a bill of lading. The contract, however, is not restricted tothe relationship of debtor and creditor above mentioned, but extends to all the other functions and services of banks connected with the customer's affairs. Often the banker acts as hiscustomer's agent or as custodian, and on occasion he assumes the role of principal as, for example, when he enters into contracts of guarantee or indemnity at the request of his customer.Many of these other functions are referred to throughout this handbook, but briefly they are as follows:-(1) The collection of cheques, bills, and other documents;(2) Intermediary for foreign exchange control purposes;(3) Mandatory of customers' dividends, interest, and other payments;(4) Agency for remittances to all parts of the world;(5) The issue of letters of credit and travellers' cheques;(6) Custody of securities, documents, and valuables;(7) The purchase and sale of stocks and shares, generally through brokers, on a recognized stock exchange;(8) Trade and investment inquiry services;(9) The granting of guarantees and indemnities;(10) Acting as executors and trustees under wills and settlements; and(11) The provision of an investment management service.Other functions include: taxation, cheque card and credit card facilities, share registration for company customers, a wide variety of computer services, insurance advice often through asubsidiary company, and highly sophisticated financial advice to the larger customer frequently in consultation with a Merchant Bank.While the contract between banker and customer has not been formulated, certain aspects have been settled by law, especially in regard to the conduct of accounts. Reference has alreadybeen made to the case of Foley vs. Hill, in which the relationship of debtor and creditor was established with the superadded obligation to honour cheques. Many of the implications of thecontract, however, have been admirably described by Lord Atkin in Joachimson vs. Swiss Bank Corporation, summarized in the next section, in which the duties of the parties to thecontract are discussed.DUTIES OF THE BANKER:The contract between banker and customer, as has been noticed, rests mainly on implication established by a series of legal decisions. In the case of Joachimson vs. Swiss BankCorporation, 1921, Lord Atkin summarized the position thus:"The bank undertakes to receive money and to collect bills for its customer's account. The proceeds so received are not to be held in trust for the customer, but the bank borrows theproceeds and undertakes to repay them. The promise to repay is to repay at the branch of the bank where the account is kept, and during banking hours. It includes a promise to repay anypart of the amount due against the written order of the customer addressed to the bank at the branch, and as such written orders may be outstanding in the ordinary course of business fortwo or three days. It is a term of the contract that the bank will not cease to do business with the customer except upon reasonable notice. The customer on his part undertakes to exercisereasonable care in executing his written orders so as not to mislead the bank or to facilitate forgery. I think it is necessary a term of such a contract that the bank is not liable to pay thecustomer the full amount of his balance until he demands payment from the bank at the branch at which the current account is kept."This is an excellent exposition so far as concerns the receipt and payment of money on behalf of the customer, but the duties and responsibilities are more extensive."?The duty of a judgment creditor is to commence proceedings against the bank (garnishee) or any person, institution or authority, etc, having custody of the judgment debtor's moneys byway of an exparte application in order to show how the judgment debtor is indebted to him and further showing that the judgment debt was partially recovered but there is still anoutstanding balance or a fixed or ascertainable amount and "...that any other person is indebted to such debtor and is within the State" as provided under Part (a) of Section 83(1) of theSheriffs and Civil Process Act, Cap. S6, Laws of the Federation of Nigeria, 2004. Upon proof of how the judgment debt arose, the judgment creditor/applicant usually prays in the sameexparte application that the Court should "...order that debts owing from such third person, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment ororder, together with the costs of the garnishee proceedings and by the same or any subsequent order it may be ordered that the garnishee shall appear before the Court to show causewhy he should not pay to the person who has obtained such judgment or order the debt due from him to such debtor or so much thereof as may be sufficient to satisfy the judgment ororder together with costs aforesaid." See Part (b) of Section 83(1) of the Act (supra). The exparte order the applicant/judgment creditor obtains against the garnishee is called an "ordernisi" under Section 83(2) of the Act (supra). The provision reads as follows: "(2) At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnisheeand on the judgment debtor."A garnishee on whom an order nisi has been served to appear and show cause why an order absolute should not be made may, depending on the circumstances of each case, invokestatutory defences that are provided under Sections 84 and 85 of the Sheriffs and Civil Process Act Cap. S.6 to wit:"84. Consent of appropriate officer or Court necessary if money is held by public officer or the Court:(1) Where money liable to be attached by garnishee proceedings is in the custody or under the control of a public officer in his official capacity or in custodia legis, the order nisi shall not bemade under the provisions of the last preceding Section unless consent to such attachment is first obtained from the appropriate officer in the case of money in the custody or control of apublic officer or of the Court in the case of money in custodia legis, as the case may be.(2) In such cases the order of notice must be served on such public officer or on the registrar of the Court, as the case may be.(3) In this Section, "appropriate officer" means:-(a) In relation to money which is in the custody of a public officer who holds a public office in the public service of the Federation, the Attorney-General of the Federation.(b) In relation to money which is in the custody of a public officer who holds a public office in the public service of the State, the Attorney-General of the State.85. Order for attachment to bind debt:Service of an order that a debt due or accruing to the judgment debtor shall be attached, or notice thereof to the garnishee, in such manner as the Court may direct, shall bind such debt inhis hands."The garnishee may file an affidavit to deny that it is not in the custody of the moneys of the judgment debtor, or that the judgment debtor is not a customer, etc, and that becomes a triableissue. Sections 87-89 of the Act provides as follows:"87. Trial of liability of garnishee:If the garnishee appears and disputes his liability, the Court, instead of making an order that execution shall issue, may order that any issue or question necessary for determining hisliability be tried or determined in any manner in which any issue or question in any proceedings may be tried or determined, or may refer the matter to a referee.88. Lien or claim of third person on debt:Whenever in any proceedings to obtain an attachment of a debt it is suggested by the garnishee that the debt sought to be attached belongs to some third person or that any third personhas a lien or charge upon it, the Court may order such third person to appear and state the nature and particulars of his claim upon such debt.89. Order may be made if third person does not appear:If the third person as described in the last preceding Section does not appear, the Court on proof of service of a copy of the order may proceed to make an order as if such person hasappeared."Had the appellant denied that the Government of Anambra State was not its customer, nor, though a customer, had no moneys in her accounts with the bank, etc, the onus would haveshifted to the judgment creditor/respondent to establish otherwise, for he who asserts has the onus of proof. A garnishing bank, person or authority served notice of a garnisheeproceedings that does not want or intend to be saddled with unnecessary or costly litigation may do well to put the judgment debtor/customer on notice to avoid paying the cost of theproceedings. Sections 90-92 of the Act provides as follows:"90. Procedure upon appearance of claimants:Upon the appearance of such third person, after hearing his allegations and those of any other person who the Court may order to appear, the Court may order execution to issue to levythe amount due from the garnishee, or any issue or question to be tried and determined, and may bar the claim of such third person, or may make such other order, upon such terms withrespect to any lien or charge or otherwise, as the Court shall think just.91. Garnishee Discharge:Payment made by or execution levied upon a garnishee under any such proceedings shall be a valid discharge to him against the debtor liable under a judgment or order, to the amountpaid or levied, even although such proceeding may be set aside or the judgment or order reversed.92. Private alienation after attachment void:After an attachment shall have been made by actual seizure or by written order as aforesaid and in case of attachment by written order, after it shall have been duly intimated and madeknown in manner aforesaid, any alienation without leave of the Court of the property attached, whether by sale, gift or otherwise and any payment of any debt or debts or dividends orshares to the judgment debtor during the continuance of the attachment, shall be null and void."Rather than complying with the order nisi the appellant became evasive and has assumed the role of a defender of the Anambra State Government/judgment debtor. All that the judgmentcreditor/respondent in this Court had to establish was that the garnishee was "...indebted to such debtor and is within State" for the Court to order that "debts owing from such thirdperson, hereinafter called the garnishee, to such debtor shall be attached to satisfy the judgment or order..." See Section 83(1) Part (b) of the Act."Per TUR, J.C.A. (Pp. 26-39, Paras. A-E) -read in context

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8. PRACTICE AND PROCEDURE - GARNISHEE PROCEEDINGS: Principles governing garnishee proceedings"Section 3(1)-(3) of the Constitution of the Federal Republic of Nigeria, 1999 as altered provides as follows:"3(1) There shall be 36 States in Nigeria, that is to say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi, Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi, Edo, Ekiti, Enugu, Gombe, Imo,Jigawa, Kaduna, Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa, Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers, Sokoto, Taraba, Yobe and Zamfara.(2) Each State of Nigeria, named in the first column of Part I of the First Schedule to this Constitution, shall consist of the area shown opposite thereto in the second column of thatSchedule.(3) The headquarters of the Government of each State shall be known as the Capital City of that State as shown in the third column of the said Part I of the First Schedule opposite the Statenamed in the first column thereof."Anambra State has a "Government". A "Government" is defined in Section 318(1) of the Constitution to include "...the Government of the Federation or of any State, or of a localgovernment council or any person who exercise power or authority on its behalf." Authority is defined to include "Government." A "function" includes "power and duty". A "person" includes"anybody of persons corporate or unincorporate." See Section 18(1) of the Interpretation Act Cap. 123, Laws of the Federation of Nigeria, 2004. Every State Government exercises powersand functions through persons, authorities or offices, etc. Moneys are held by such persons, authorities or bodies, for instance in banks, or by public officers for and on behalf of theGovernment. See Sections 316-317 of the Constitution.Section 83(1) of the Sheriffs and Civil Process Act Cap. S.6 does not lay any burden on a judgment creditor to establish how many accounts a judgment debtor has with a third party or as inthis case, the appellant. All that the judgment creditor is to establish is that the appellant is a debtor to the Anambra State Government (the judgment debtor). Section 124(1)-(3) of theEvidence Act, 2011 provides as follows:"124(1) Proof shall not be required of a fact the knowledge of which is not reasonably open to question and which is:-(a) Common knowledge in the locality in which the proceeding is being held, or generally; or(b) Capable of verification by reference to a document the authority of which cannot reasonably be questioned.(2) The Court may acquire, in any manner it deems fit, knowledge of a fact to which Subsection (1) of this Section refers, and shall take such knowledge into account.(3) The Court shall give to a party to any proceeding such opportunity to make submission, and to refer to a relevant information, in relation to the acquiring or taking into account of suchknowledge, as is necessary to ensure that the party is not unfairly prejudiced."?It is common knowledge that modernized banks conduct business through the use of computers. Section 258(1) of the Evidence Act, 2011 defines what is a "bank," a "banker"; "banker'sbooks," "banking business" and "computer" as follows:"258(1) In this Act:-"Bank" or "banker" means a bank licensed under the Banks and Other Financial Institutions Act Cap. B3, Laws of Federation of Nigeria, 2004 and includes anybody authorized under anenactment to carry on banking business."Banker's books" (and related expressions) includes ledger, day books, cash books, account books and all other books used in banking business."Banking business" has the meaning assigned to it in the Banks and Other Financial Institutions Act, 1991."Computer" means any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it bycalculation, comparison or any other process."Sections 51 and 52 of the Evidence Act, 2011 is couched as follows:"51. Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire but suchstatements shall notalone be sufficient evidence to charge any person with liability.52. An entry in any public or other official books, register or record, including electronic record stating a fact in issue or relevant fact and made by a public servant in the discharge of hisofficial duty, by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible."Per TUR, J.C.A.(Pp. 42-46, Paras. A-B) - read in context

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HELEN MORONKEJI OGUNWUMIJU, J .C.A.

(Delivering the Leading Judgment): This is an appeal

against the Ruling of the High Court of Anambra State

delivered by Hon. Justice H.O. Ozoh on 15/7/2013.

The facts leading to this appeal are that the Respondent as

judgment/creditor having obtained a judgment of

N23,936,100.25 at the Contracts Evaluation Debts and

Property Recovery Tribunal of Anambra State of Nigeria

subsequently obtained at the High Court an Order Nisi on

9/4/13 via a motion ex parte, directing the Appellant as 3rd

garnishee (one of three garnishees) to show cause why an

order should not be made upon it for payment to the

Respondent the amount of judgment debt due to the

Respondent or so much as would satisfy the judgment debt

and the costs entered on the summons. The Appellant filed

an affidavit showing cause but did not furnish the Court

with the amount belonging to the judgment debtor in its

custody citing lack of specific account details as the reason

for the non-disclosure.

The learned trial judge consequently made an order on

15/7/13 directing the Appellant to furnish the Court with

the amount in all the accounts

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maintained by the Anambra State Government with the

Appellant within seven (7) days.

Dissatisfied with the Ruling, the Appellant filed a Notice of

Appeal on 19/7/13. The Record of Appeal was transmitted

on 12/12/13 and deemed transmitted on 12/12/13.

Appellant’s brief of argument was filed on 25/2/14 and

deemed filed on 25/9/14. The Respondent’s brief of

argument was filed on 8/10/14.

The Appellant’s brief of argument was settled by C.P.

Oguchienti, Esq. who formulated two issues for

determination as follows:

1. Whether the lower Court rightly made its

Garnishee Order Nisi absolute, in the face of the

challenge posed by the Appellant in its Affidavit

showing cause.

2. Whether the lower Court, on the strength of non-

disclosure of sufficient particulars, to wit; Account

Names and Account Number of the judgment Debtor,

domiciled with the Appellant?

The Respondent’s counsel C.I. Okafor Esq. in his brief of

argument adopted the issues formulated in the Appellant’s

brief of argument.

I have read the Records and considered the Grounds of

Appeal as well as arguments of counsel. The sole issue for

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determination distillable from the Grounds of Appeal and

the complaints of the Appellant as emanating from the

decision of the trial Court is:-

Whether the order of the trial Court directing the

Appellant to furnish the Court with the amount in all

the accounts operated by the Anambra State

Government with the Appellant was perverse with

regard to garnishee proceedings.

SOLE ISSUE

Whether the order of the trial Court directing the

Appellant to furnish the Court with the amount in all

the accounts operated by the Anambra State

Government with the Appellant was perverse with

regard to garnishee proceedings.

Appellant’s counsel argued that the law does not compel a

garnishee, who has shown cause why the amount stated in

the garnishee order nisi of Court should not be paid, to pay

the amount stated where the order of Court does not state

the particulars of the judgment debtor’s account. Counsel

cited Sec. 83 & 87 of the Sheriffs and Civil Process Act Cap

65 LFN, 2004.

Counsel for the Appellant submitted that the provisions of

Sec 83 of the Sheriffs and Civil Process Act Cap 65 LFN,

2004, becomes enforceable against a

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garnishee, only where he fails to attend Court or show

cause why the garnishee order should not be made

absolute. Counsel insisted that an order absolute can only

be made where the garnishee admitted that he was served

with the garnishee order but failed to show cause why the

Order Nisi should not be made absolute. Counsel cited Sec.

86 Sheriffs and Civil Process Act Cap 65 LFN, 2004,

Udensi Ndubisi & 2 Ors v. Surresh Jarparputra & Anor

in Re: Diamond Bank Ltd (2002) 17 NWLR Pt. 795 Pg.

120.

Appellant’s counsel argued that the order of the lower

Court, directing the Appellant to disclose the amount in all

the accounts of the judgment debtor is not only against the

provisions of Sec.83 of Sheriffs and Civil Process Act, it is

outside the scope of Decree Nisi. Counsel maintained that

it was an issue outside the contemplation of the parties who

are ordinarily bound and confined to the issues presented

to the Court and that the Court is also bound to confine

itself to the issues before it. Counsel cited Oredoyin vs.

Arowolo (1989) 4 NWLR Pt. 114 Pg. 172 at 192;

Uzochukwu vs. Ezeonu II (1991) 6 NWLR Pt. 200 Pg.

708 at 784-785.

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Appellant’s counsel argued that the order of Court

directing the Appellant to reveal all account details of the

judgment debtor amounts to a usurpation of the contractual

duty of care owed the judgment debtor by the Appellant.

Counsel further argued that the judgment debtor (Anambra

State Government) is a customer of the Appellant and like

every other customer of the bank; the Appellant owes her a

contractual duty of care and security of its account

position. Counsel cited Emmanuel Agbanelo vs. Union

Bank of Nigeria Ltd (2000) 4 S.C. Pt. 1 Pg. 233 at 242.

Learned Appellant’s counsel argued that if the order of the

lower Court that the Appellant should disclose all the

accounts of the judgment debtor (Anambra State

Government) is obeyed, a dedicated account or an account

meant for payment of workers’ salary may wrongly be

attached.

Learned counsel for the Appellant submitted that a person

who knows his judgment debtor has an account with a

bank, should have knowledge of the particulars of the

account he knows, otherwise it would just amount to

speculation, probably because he saw the judgment debtor

entering or leaving the

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premises of the bank. Counsel argued that a party who

desires the Court to favor him, ought to provide the Court

with essential materials that would aid the Court in taking

a decision in his favour.

Appellant’s counsel argued further that the Court has no

jurisdiction to grant an order which was not prayed for by a

party and that the decision of the lower Court that ‘the

Government Anambra State is known by everybody’ falls

within the realm of speculation which the Courts have been

enjoined not to undertake. Counsel cited Zabusky vs.

Isreali Aircraft Industries (2007) All FWLR Pt. 352 Pg.

1782 Paras G-H. Counsel also relied on Sec. 131 (1)

Evidence Act 2010; Awuse vs. Odili (2005) All FWLR Pt.

261 Pg. 321-322 Paras. H-C.

In response, learned Respondent’s counsel argued that

there was no ambiguity in the order of the Court below,

and no order absolute was made by the lower Court.

Counsel argued that an order absolute is an order which

puts an end to an action, in determining the finality of an

order, the order itself would be considered by the Court,

and not the nature of the proceedings. Counsel cited

Animashaun vs. Bakare

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(2010) 16 NWLR Pt. 1220 Pg. 513; Odeh vs. Ameh

(2004) 4 NWLR Pt. 863 Pg. 309; Ogboru vs. Ibori

(2006) 17 NWLR Pt. 1009 Pg. 542; Nwabueze vs.

Nipost (2006) 8 NWLR Pt. 983 Pg. 480.

Respondent’s counsel argued that the proceedings of the

lower Court was a garnishee proceedings to enable the

Respondent as the judgment creditor/garnishor, attach the

sums held by the Appellant to the credit of the judgment

debtor, in order to use same to satisfy the judgment debt.

Respondent’s counsel argued that the Appellant as 3rd

garnishee was required only to show cause why the amount

as contained in the accounts of the judgment debtor held

by the Appellant should not be used to satisfy the judgment

debt and the Court held that the excuse of the Appellant

that it could not conduct a search was not sufficient reason

not to comply with the order nisi and thereby ordered the

Appellant to furnish the Court with all accounts operated

by the judgment debtor.

Respondent’s counsel argued that the order made by the

lower Court does not constitute final orders. Counsel

argued that the order of the lower Court mandated the

Appellant to comply with a

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previous order, which was an order mandating the

Appellant to furnish the Court with the details of all the

account of the judgment debtor.

Respondent’s counsel argued that Sec. 83 & 87 of the

Sheriffs and Civil Process Act did not provide for the

production of account number and account name in a

garnishee proceeding. Counsel argued that the lower Court

in compliance with Sec. 87 of the Sheriffs and Civil Process

Act Cap 65 LFN, 2004, was in the process of determining

whether the Appellant holds funds belonging to the

judgment debt and whether it was sufficient to satisfy the

judgment debt.

Learned Respondent’s counsel argued that the Appellant

did not dispute liability, it also did not contest that there is

one entity called Anambra State Government, rather it gave

an excuse that it was not in a position to confirm if it was

holding such funds, as no account name or account number

was supplied.

Respondent’s counsel argued that in a garnishee

proceeding, all the applicant needs to do is to commence

the proceedings in compliance with the provisions of

Sheriffs and Civil Process Act. Counsel cited N.A.O.C. vs.

Ogini (2011) 2

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NWLR Pt. 1230 Pg. 131.

Respondent’s counsel argued that when there is an order

nisi, pending the issuance or otherwise of an order

absolute, the garnishee is refrained from using the money

held in its account for the judgment debtor in a way that

would jeopardize the satisfaction of the judgment debt.

Counsel cited CBN VS. Kraus Thompson Org. Ltd

(2002) 5 NWLR Pt. 765 Pg. 139.

Learned Respondent’s counsel argued that a banker is

entitled to combine different accounts kept by the customer

in his own right, even though at different branches of the

same bank, and to treat the balance, if any, as the only

amount standing to its credit. Counsel argued that where a

judgment debtor’s money is traced to a bank, all money in

his credit is attachable. Counsel cited F.I.B. Plc vs.

Effiong (2010) 16 NWLR Pt. 1218 Pg. 199; Sokoto

State Government vs. Kamdex (Nig) Ltd (2004) 9

NWLR Pt. 878 Pg. 345.

OPINION

It is beyond doubt that one of the methods by which

liquidated money judgments can be enforced is by way of

garnishee proceedings. Garnishee proceedings is defined in

Black’s Law Dictionary as follows:

A judicial

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proceeding in which a creditor (or potential creditor)

asks the Court to order a third party who is indebted

to or is bailee for the debtor to turn over to the

creditor any of the debtor’s property (such as wages

or bank accounts) held by that third party.

Part V- Attachment of debts by Garnishee Order is the

appropriate part of the Sheriffs and Civil Process Act which

regulates this process. I will set out the relevant provisions

necessary to determine the issue under consideration. S. 83

provides as follows:

83(1). The Court may, upon the ex parte application

of any person who is entitled to the benefit of a

judgment for the recovery or payment of money,

either before or after any oral examination of the

debtor liable under such judgment and upon affidavit

by the applicant or his legal practitioner that

judgment has been recovered and that it is still

unsatisfied and to what amount and that any other

person is indebted to such debtor and is within the

State, order the debts owing from such third person,

hereinafter called the garnishee, to such debtor shall

be attached to satisfy the judgment or order, together

with the costs of the garnishee

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proceedings and by the same or any subsequent order

it may be ordered that the garnishee shall appear

before the Court to show cause why he should not pay

to the person who has obtained such judgment or

order the debt due from him to such debtor or so

much there of as may be sufficient to satisfy the

judgment or order together with costs aforesaid.

83(2). At least fourteen days before the day of

hearing, a copy of the order nisi shall be served upon

the garnishee and on the judgment debtor.

S. 87 also provides as follows:

If the garnishee appears and disputes his liability, the

Court, instead of making an order that execution

shall issue, may order that any issue or question

necessary for determining his liability be tried or

determined in any manner in which any issue or

question in any proceedings may be tried or

determined, or may refer the matter to a referee.

A garnishee proceeding can be described in two stages; the

first stage is the process of getting an order nisi. The order

nisi directs the garnishee to appear in Court on a specified

date to show cause why an order should not be made upon

him for payment to the judgment creditor

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the amount of the debt owed the judgment debtor. This is

usually done ex parte and limited to the judgment creditor

and the Court.

The second stage is where on the return date the garnishee

does not attend, or does not dispute the debt claimed to be

due from him to the judgment debtor, the Court may,

subject to certain restrictions, make the garnishee order

absolute under which the garnishee is ordered to pay to the

judgment creditor the amount of debt due from him to the

judgment debtor, or so much of it as is sufficient to satisfy

the judgment debt together with the cost of the

proceedings and cost of garnishee. This later proceeding is

tripartite between the judgment debtor, judgment creditor

and the Garnishee. This is because on the return date all

parties must have been served and given an opportunity to

dispute liability or pray that the order nisi be discharged

for one cause or the other as shown by any of the parties,

particularly the garnishee. This is because the garnishee

may dispute his liability to pay the debt. He will appear in

Court on the return date and dispute his liability by

denying indebtedness to the judgment debtor.

There is

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no doubt that a garnishee proceeding is a means of

collecting a monetary judgment against a judgment debtor

by ordering a third party (the garnishee) to pay money,

otherwise owed to the judgment debtor, directly to the

judgment creditor. In UBN Plc. V. Boney Marcus

Industries Ltd. & Ors. (2005) All FWLR (Pt.278) 1037

at 1046, garnishee proceeding was defined as a process of

enforcing a money judgment by the seizure or attachment

of the debts due or accruing to the judgment debtor which

form part of his property available in execution. It is in the

hands of a third party whereby, the Court order is required

to direct the third party to pay directly to the judgment

creditor.

By the Judgment Enforcement Rules, where any bank, in

custody of the monies belonging to a customer who is a

judgment debtor, is within the jurisdiction of the Court that

has decided a debt as due to the judgment creditor against

a judgment debtor (whom the bank is in custody of his

monies), such monies or funds can be utilized in settlement

of the judgment debt and enforced by such Court as

immediately payable to the judgment debtor/customer.

In other words, a Garnishee

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proceeding is a process of enforcing money judgment by

the seizure or attachment of the debt due and accruing to

the judgment debtor, which forms part of his property in

the hands of a third party for attachment. By this process,

the Court is competent to order a third party in whose

hands the property of the judgment debtor is, to pay

directly to the judgment creditor the debt due or accruing

from him to the judgment debtor or as much as it as may be

sufficient to satisfy the judgment and the costs of the

proceedings. See Citizens Int'l Bank v. SCOA (Nig) Ltd

(2006) 18 NWLR Pt.1011 Pg. 334.

Thus, a garnishee proceeding is a process leading to the

attachment of debt owed to a judgment debtor by a third

party who is indebted to the judgment debtor. It is sui

generis and is unlike other proceedings for enforcement of

judgment.

Moving away from the generic description of Garnishee

proceedings to the peculiar facts of this case, the

contention of the Appellant can be summed up concisely as

the alleged wrongful order of the trial Court mandating the

Appellant to furnish the Court with all the accounts of the

judgment debtor in its custody in the absence

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of particulars of the account to be attached for execution.

Appellant’s counsel argued strenuously that without the

account number of the judgment debtor, to reveal all

account details of the judgment debtor amounts to a

usurpation of the contractual duty of care owed the

judgment debtor by the Appellant and that the Appellant

owes the judgment debtor a contractual duty of care and

security of its account position.

This argument of counsel is misguided. Mbaba JCA in

Oceanic Bank Plc v. Oladepo (2012) LPELR-19670

rightly put the position of this Court as follows:

“I have already stated in this judgment that the

relevant particulars required by Section 83(1) of the

Sherriff and Civil Process Act, for the purpose of

garnishee proceedings, had been satisfied by the 1st

Respondent and that the Application at the lower

Court was not speculative, simply because the

account number and the exact amount to the credit of

the judgment Debtor were not stated by the 1st

Respondent. Of course, the information as to the

account number and the exact amount in the account,

were information within the exclusive knowledge of

the Appellant and the 2nd

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Respondent, and by banking confidentialities, division

of such information is not permitted to a 3rd party.

The 1st Respondent was therefore not expected to

have such detail.”

Counsel’s reliance on Emmanuel Agbanelo vs. Union

Bank of Nigeria Ltd (Supra) is misconceived. In that

case, the Appellant operated a current account in the name

and style of EPACO (Nigeria) Marketing Company with one

of the Respondent’s branches in Warri. On the instruction

of the Appellant, the Respondent issued a bank draft in

favour of the manufacturer’s payable at the Respondent’s

branch in Surulere. Upon presentation of the draft by the

manufacturers for payment, it was returned unpaid and

endorsed ‘1st signature irregular’. Claiming that these

words endorsed on the draft were defamatory of him and

that the draft was negligently refused, the Appellant

instituted an action at the High Court and claimed

damages.

Upon appeal to the Supreme Court after the trial Court and

the Court of Appeal decided against the Appellant, the

Supreme Court held that a bank has a duty to a person on

whose request it has agreed to issue a draft to issue

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and honour such draft. In the discharge of that duty, it

must show care to ensure that the banker’s draft is

properly issued and honoured. The Supreme Court held

that from the facts of the case, it was clear that the

Respondent was in breach of the duty of reasonable care

and skill it owed to the Appellant.

This has nothing to do with the instant case. The duty of

confidentiality owed a customer is certainly subject to an

order of Court. It is firmly settled that an order of Court

must be obeyed until such a time that the order is set aside.

There is no doubt that a bank owes its customers a legal

duty of confidentiality not to disclose information to third

parties, a breach of which could give rise to liability in

damages. This duty arises between a bank and its customer

as soon as an account is opened and as a matter of fact, it

cont inues even a f ter the terminat ion o f the

banker/customer relationship. All information which

include details of customers’ accounts, their names and

addresses obtained by virtue of the banker/customer

relationship are covered by the duty of confidentiality and

must be protected from unauthorized access by a

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third party.

However, there are exceptions to this duty of

confidentiality owed a customer by the bank. This was ably

laid down in the Locus classicus case of Tournier V.

National Prudential Bank of England (1923) All ER

550, (1924) 1 KB 461.

The English Court held as follows:

“In my opinion it is necessary in a case like the

present to direct the jury. What are the limits, and

what are the qualifications of the contractual duty of

secrecy implied in the relation of banker and

customer. There appears to be no authority on the

point. On principle I think that the qualifications can

be classified under four heads: (a) Where disclosure

is under compulsion by law; (b) where there is a duty

to the public to disclose; (c) where the interests of the

bank require disclosure; (d) where the disclosure is

made by the express or implied consent of the

customer.”

The Code of Banking Practice produced by the General

Assembly of Bank Chief Executives under the auspices of

The Chartered Institute of Bankers of Nigeria has

incorporated these exceptions in Article 7 thereof. It is as

follows:

7.1. Banks will observe a strict duty of

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confidentiality about their customers (and former

customers’) affairs and will not disclose details of

customers’ accounts or their names and addresses to

any third party, including other companies in the

same group, other than in the four exceptional cases

permitted by the law, namely:

7.1.1 Where a bank is legally compelled to do so;

7.1.2 Where there is a duty to the public to disclose;

7.1.3 Where the interests of the bank require

disclosure; and

7.1.4 Where disclosure is made at the request or with

the consent (expressed or implied) of the customer.

7.2 Banks will not use exception 7.1.3 above to justify

the disclosure for marketing purposes of details of

customers’ accounts or their names and addresses to

any third party, including other companies within the

same group.

7.3 All banks should insist on their staff signing a

‘Declaration of Secrecy’ to guarantee the

confidentiality of customer information.

S e e a l s o U B A V . C A C & O r s . ( 2 0 1 6 )

LPELR-40569(CA). This Court held that the Appellant

cannot hide behind the confidentiality veil to attempt to

frustrate a legitimate exercise of the

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statutory power granted to an agency or person under the

law. It was held that confidential client information may be

disclosed under Section 317 CAMA as well as the exercise

of the Commission’s general power to require provision of

information and documents in discharging its functions

pursuant to Section 7 of CAMA.

In other words, one of the exceptions to the duty of

confidentiality owed a customer by the bank is where there

is a Court order compelling the disclosure of the account

details or any other information of a customer. Such Court

order obviates the liability that a bank would ordinarily

incur in the event of a breach of the duty of confidentiality.

An Order Nisi is no less an order of Court and the Appellant

is bound by it.

At page 164 of the record, the trial Court held as follows:

“The Government of Anambra State is known by

everybody. No other institution is called Anambra

State Government. The order nisi was directed to it. I

therefore hold that the name Government of Anambra

State is sufficient enough for the 3rd Garnishee to act

and obey the order nisi by furnishing the amount in

the various accounts maintained by

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Government of Anambra State.”

I agree with the learned trial judge that the Government of

Anambra State is known by everybody as no other

institution or body can be known as and called Anambra

State Government. It is an accepted matter of public

knowledge of which this Court rightly takes judicial notice

that Anambra State Government, being a juristic person

duly recognized by the 1999 Constitution is the only one

capable of operating an account with the name Anambra

State Government. This is a notorious fact which requires

no proof.

The law does not prohibit a judgment creditor who does not

have the account numbers of a judgment debtor from

instituting garnishee proceedings against a bank in whose

custody the monies of a judgment debtor resides. Counsel

for the Appellant made heavy weather of this issue and

relied on Sections 83 & 87 in so doing. I have read the

provisions and they are generously quoted in this judgment,

I see nothing to support the argument of counsel in that

regard.

That was the point made by Mbaba JCA in Oceanic Bank

v. Oladepo (Supra) to the effect that the Bank would not

have disclosed to the Respondent the

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details of the accounts of the judgment debtor. Only the

Court can command that confidential information which it

has done in this case.

With the greatest respect, it is clear that there is an

abysmal lack of understanding of the garnishee

proceedings by learned Appellant’s counsel.

The order of Court was not an order absolute as counsel for

the Appellant contends. While the other two garnishees

(Access Bank Plc. and Diamond Bank Plc.) in obedience to

the Court order, filed affidavits disclosing the accounts of

the judgment debtor with them to show cause why they

should not satisfy the judgment debt, the Appellant

blatantly refused and resorted to legal games after the

Order Nisi was served on it.

In fact, the Appellant submitted at paragraph 5.11 of the

Appellant’s Brief that Anambra State Government through

its various Ministries and Departments keep several

accounts with the banks and without specific account

particulars, certain accounts ‘may be wrongly attached

with the concomitant dangerous effect’. In one breath, the

Appellant claims it could not conduct a search because

there was not enough particulars, on

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another, the Appellant admits that the judgment debtor

operates several accounts with the Appellant but the

‘dangerous effect’ of complying with the order of Court

prevents the Appellant from so doing. That is absolutely

unacceptable.

It has been reiterated by the Courts that it is not the duty

or business of a garnishee to play the role of a defender or

advocate for a judgment debtor by attempting to protect

the money of the judgment debtor in its custody. By

refusing to disclose the accounts of the judgment debtor, it

is clear to me that the Appellant is doing its best to disobey

an order of Court.

In sum, the order of Court appealed against is not an order

absolute, it is an order mandating the Appellant to furnish

the Court with the accounts operated by the judgment

debtor with the Appellant. It does not automatically

transmit to an order of Court attaching the funds for

execution as it is under an order absolute. What it is, is an

attempt by the Court to ascertain whether such funds at

the disposal of the Appellant belonging to the judgment

debtor can satisfy the judgment debt which is the essence

of the order nisi for the Appellant

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to show cause.

This appeal is a calculated waste of the Respondent’s time

by the Appellant who surprisingly was not party to the suit.

The Appeal is wholly without merit and is hereby dismissed.

Costs of N200,000.00 is awarded against the Appellant in

favour of the Respondent.

Appeal Dismissed.

JOSEPH TINE TUR, J.C.A.: I had the privilege to read in

advance the decision of my learned colleague on the bench,

Helen Moronkeji Ogunwumiju, JCA. I am in total agreement

with the conclusion that the appeal lacks merit. I may add

that the appeal is frivolous and vexatious and should be

dismissed. The cost of this appeal should be shouldered by

the appellant. The legislative intention is that any

determination by a Justice of the Supreme Court or the

Court of Appeal is an “opinion” or a “decision.” This is

provided in Sections 294(2)-(4) and 318(1) of the

Constitution of the Federal Republic of Nigeria, 1999

altered. The provisions are couched as follows:

“(2) Each Justice of the Supreme Court or of the

Court of Appeal shall express and deliver his

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opinion in writing, or may state in writing that he

adopts the opinion of any other Justice who delivers a

written opinion:

Provided that it shall not be necessary for the Justices

who heard a cause or matter to be present when

judgment is to be delivered and the opinion of a

Justice may be pronounced or read by any other

Justice whether or not he was present at the hearing.

(3) A decision of a Court consisting of more than one

Judge shall be determined by the opinion of the

majority of its members.

(4) For the purpose of delivering its decision under

this Section, the Supreme Court, or the Court of

Appeal shall be deemed to be duly constituted if at

least one member of that Court sits for that purpose.

xxxxxxxxxxxxxxx

318(1) “Decision” means, in the relation to a Court,

any determination of that Court and includes

judgment; decree, order, conviction, sentence or

recommendation.”

I have tagged this determination an opinion so as to

conform with the legislative intention. The learned Counsel

to the appellant has misconceived the purport of a

garnishee proceeding. That misled the learned Counsel to

have appealed

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the decision of the learned trial Judge, H.O. Ozoh, J.,

rendered on 15th July, 2013. To “garnish” is “1. To warn

(2) To extract money from prisoners.” A “garnishee” is

“a person who has been warned not to pay a debt to

anyone other than the third party who has obtained

judgment against the debtor’s own creditor” hence

“garnishee proceeding(s)” are “A procedure by which

a judgment creditor may obtain a Court order against

a third party who owes money to, or holds money for

the judgment debtor. It is usually obtained against a

bank requiring the bank to pay money held in the

account of the debtor to the creditor.” See Osborn’s

Concise Law Dictionary, 9th edition, page 181. Writes the

learned authors of Black’s Law Dictionary, 9th edition,

page 749:

“Garnish, Hist. Money exacted from a new prisoner by

other prisoners or as a jailer’s fee. This practice was

banned in England in 1815.

Garnish (Old French garnir “to warn” “to prepare”).

1. Hist. To notify or warn (a person) of certain debts

that must be paid before the person is

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entitled to receive property as an heir. 2. To subject

(property) to garnishment; to attach (property held by

a third party) in order to satisfy a debt. 3. To notify (a

person, bank, etc.) that a garnishment proceeding has

been undertaken and that the one receiving notice

may be liable as stakeholder or custodian of the

defendant’s property. – Also termed garnishee…

Garnishee …A person or institution (such as a bank)

that is indebted to or is liable for another whose

property has been subjected to garnishment. – Also

termed garnishee-defendant (as opposed to the

“principal defendant,” i.e., the primary debtor)…”

In Choice Investments Ltd. vs. Jeromnimon (1981) 1

All E.R. 225, Lord Denning, M.R. held at pages 226-227 as

follows:

“The word “garnishee” is derived from the Norman

French. It denotes one who is required to “garnish”,

that is, to furnish a creditor with the money to pay off

a debt. A simple instance will suffice. A creditor is

owed £100 by a debtor. The debtor does not pay. The

creditor gets judgment against him for the £100. Still

the

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debtor does not pay. The creditor then discovers that

the debtor is a customer of a bank and has £150 at

his bank. The creditor can get a “garnishee” order

against the bank by which the bank is required to pay

into Court or direct to the creditor – out of its

customer’s £150 – the £100 which he owes to the

creditor.

There are two steps in the process. The first is a

garnishee order nisi. Nisi is Norman-French. It means

“unless”. It is an order upon the bank to pay the £100

to the judgment creditor or into Court within a stated

time, unless there is some sufficient reason why the

bank should not do so. Such reason may exist if the

bank disputes its indebtedness to the customer for

some reason or other. Or if payment to this creditor

might be unfair to prefer him to other creditors: See

Pritchard vs. Westminster Bank Ltd and Rainbow vs.

Moorgate Properties Ltd. If no sufficient reason

appears, the garnishee order is made absolute – to

pay to the judgment creditor – or into Court:

whichever is the more appropriate. On making the

payment, the bank gets a good discharge from its

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indebtedness to its own customer – just as if he

himself directed the bank to pay it. If it is a deposit

on seven days’ notice, the order nisi operates as the

notice.

As soon as the garnishee order nisi is served on the

bank, it operates as an injunction. It prevents the

bank from paying the money to its customer until the

garnishee order is made absolute, or is discharged, as

the case may be.”

See also Foley vs. Hill 9 E.R. 1002; Balogun vs.

National Bank of Nigeria (1978) NNLR 63 at 69 and

Union Bank of Nigeria Ltd. vs. Nwoye (1990) NWLR

(Pt.130) 69 at 77.

If there has been any relationship between the appellant,

namely the garnishee and the Anambra State Government

(the judgment debtor), it is that of a banker and a

customer, founded on contract. In Banker and Customer by

W.W. Wood, 3rd edition, Revised by James Russell appears

at pages 14 to 15 the following write-up:

“Primarily the relationship is one of contract. There is

in the mere receiving of money to be credited to a

customer’s account the essential element of contract-

namely, offer and acceptance: offer by the customer

on his part of the money as a

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loan, despite the fact that the motive of deposit for

safe keeping may be present, and acceptance of the

money by the bank under the implied condition that it

will be repaid on demand to the customer’s order.

When a person opens an account at a bank he does

not, apart from a simple opening form, sign any

document setting out the conditions on which his

account will be kept. The relationship between banker

and customer has not been reduced to formal terms

as it is in most other legal relationships – e.g., in a

lease or a bill of lading. The contract, however, is not

restricted to the relationship of debtor and creditor

above mentioned, but extends to all the other

functions and services of banks connected with the

customer’s affairs. Often the banker acts as his

customer’s agent or as custodian, and on occasion he

assumes the role of principal as, for example, when he

enters into contracts of guarantee or indemnity at the

request of his customer. Many of these other

functions are referred to throughout this handbook,

but briefly they are as follows:-

(1) The collection of cheques, bills, and other

documents;

(2)

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Intermediary for foreign exchange control purposes;

(3) Mandatory of customers’ dividends, interest, and

other payments;

(4) Agency for remittances to all parts of the world;

(5) The issue of letters of credit and travellers’

cheques;

(6) Custody of securities, documents, and valuables;

(7) The purchase and sale of stocks and shares,

generally through brokers, on a recognized stock

exchange;

(8) Trade and investment inquiry services;

(9) The granting of guarantees and indemnities;

(10) Acting as executors and trustees under wills and

settlements; and

(11) The provision of an investment management

service.

Other functions include: taxation, cheque card and

credit card facilities, share registration for company

customers, a wide variety of computer services,

insurance advice often through a subsidiary company,

and highly sophisticated financial advice to the larger

customer frequently in consultation with a Merchant

Bank.

While the contract between banker and customer has

not been formulated, certain aspects have been

settled by law, especially in regard to the conduct of

accounts.

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Reference has already been made to the case of Foley

vs. Hill, in which the relationship of debtor and

creditor was established with the superadded

obligation to honour cheques. Many of the

implications of the contract, however, have been

admirably described by Lord Atkin in Joachimson vs.

Swiss Bank Corporation, summarized in the next

section, in which the duties of the parties to the

contract are discussed.

DUTIES OF THE BANKER:

The contract between banker and customer, as has

been noticed, rests mainly on implication established

by a series of legal decisions. In the case of

Joachimson vs. Swiss Bank Corporation, 1921, Lord

Atkin summarized the position thus:

“The bank undertakes to receive money and to collect

bills for its customer’s account. The proceeds so

received are not to be held in trust for the customer,

but the bank borrows the proceeds and undertakes to

repay them. The promise to repay is to repay at the

branch of the bank where the account is kept, and

during banking hours. It includes a promise to repay

any part of the amount due against the written order

of the customer addressed to the bank at the branch,

and as

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such written orders may be outstanding in the

ordinary course of business for two or three days. It is

a term of the contract that the bank will not cease to

do business with the customer except upon

reasonable notice. The customer on his part

undertakes to exercise reasonable care in executing

his written orders so as not to mislead the bank or to

facilitate forgery. I think it is necessary a term of

such a contract that the bank is not liable to pay the

customer the full amount of his balance until he

demands payment from the bank at the branch at

which the current account is kept.”

This is an excellent exposition so far as concerns the

receipt and payment of money on behalf of the

customer, but the duties and responsibilities are

more extensive.”

The duty of a judgment creditor is to commence

proceedings against the bank (garnishee) or any person,

institution or authority, etc, having custody of the judgment

debtor’s moneys by way of an exparte application in order

to show how the judgment debtor is indebted to him and

further showing that the judgment debt was partially

recovered but there is still an outstanding balance or a

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fixed or ascertainable amount and “…that any other

person is indebted to such debtor and is within the

State” as provided under Part (a) of Section 83(1) of the

Sheriffs and Civil Process Act, Cap. S6, Laws of the

Federation of Nigeria, 2004. Upon proof of how the

judgment debt arose, the judgment creditor/applicant

usually prays in the same exparte application that the Court

should “…order that debts owing from such third

person, hereinafter called the garnishee, to such

debtor shall be attached to satisfy the judgment or

order, together with the costs of the garnishee

proceedings and by the same or any subsequent order

it may be ordered that the garnishee shall appear

before the Court to show cause why he should not pay

to the person who has obtained such judgment or

order the debt due from him to such debtor or so

much thereof as may be sufficient to satisfy the

judgment or order together with costs aforesaid.” See

Part (b) of Section 83(1) of the Act (supra). The exparte

order the applicant/judgment creditor obtains against the

garnishee is called an “order nisi” under Section 83(2) of

the Act (supra). The

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provision reads as follows: “(2) At least fourteen days

before the day of hearing, a copy of the order nisi

shall be served upon the garnishee and on the

judgment debtor.”

A garnishee on whom an order nisi has been served to

appear and show cause why an order absolute should not

be made may, depending on the circumstances of each

case, invoke statutory defences that are provided under

Sections 84 and 85 of the Sheriffs and Civil Process Act

Cap. S.6 to wit:

“84. Consent of appropriate officer or Court necessary

if money is held by public officer or the Court:

(1) Where money liable to be attached by garnishee

proceedings is in the custody or under the control of

a public officer in his official capacity or in custodia

legis, the order nisi shall not be made under the

provisions of the last preceding Section unless

consent to such attachment is first obtained from the

appropriate officer in the case of money in the

custody or control of a public officer or of the Court

in the case of money in custodia legis, as the case

may be.

(2) In such cases the order of notice must be served

on such public officer or on the registrar

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of the Court, as the case may be.

(3) In this Section, “appropriate officer” means:-

(a) In relation to money which is in the custody of a

public officer who holds a public office in the public

service of the Federation, the Attorney-General of the

Federation.

(b) In relation to money which is in the custody of a

public officer who holds a public office in the public

service of the State, the Attorney-General of the

State.

85. Order for attachment to bind debt:

Service of an order that a debt due or accruing to the

judgment debtor shall be attached, or notice thereof

to the garnishee, in such manner as the Court may

direct, shall bind such debt in his hands.”

The garnishee may file an affidavit to deny that it is not in

the custody of the moneys of the judgment debtor, or that

the judgment debtor is not a customer, etc, and that

becomes a triable issue. Sections 87-89 of the Act provides

as follows:

“87. Trial of liability of garnishee:

If the garnishee appears and disputes his liability, the

Court, instead of making an order that execution

shall issue, may order that any issue or question

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necessary for determining his liability be tried or

determined in any manner in which any issue or

question in any proceedings may be tried or

determined, or may refer the matter to a referee.

88. Lien or claim of third person on debt:

Whenever in any proceedings to obtain an attachment

of a debt it is suggested by the garnishee that the

debt sought to be attached belongs to some third

person or that any third person has a lien or charge

upon it, the Court may order such third person to

appear and state the nature and particulars of his

claim upon such debt.

89. Order may be made if third person does not

appear:

If the third person as described in the last preceding

Section does not appear, the Court on proof of service

of a copy of the order may proceed to make an order

as if such person has appeared.”

Had the appellant denied that the Government of Anambra

State was not its customer, nor, though a customer, had no

moneys in her accounts with the bank, etc, the onus would

have shifted to the judgment creditor/respondent to

establish otherwise, for he who asserts has the onus of

proof. A garnishing bank, person or authority

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served notice of a garnishee proceedings that does not

want or intend to be saddled with unnecessary or costly

litigation may do well to put the judgment debtor/customer

on notice to avoid paying the cost of the proceedings.

Sections 90-92 of the Act provides as follows:

“90. Procedure upon appearance of claimants:

Upon the appearance of such third person, after

hearing his allegations and those of any other person

who the Court may order to appear, the Court may

order execution to issue to levy the amount due from

the garnishee, or any issue or question to be tried and

determined, and may bar the claim of such third

person, or may make such other order, upon such

terms with respect to any lien or charge or otherwise,

as the Court shall think just.

91. Garnishee Discharge:

Payment made by or execution levied upon a

garnishee under any such proceedings shall be a valid

discharge to him against the debtor liable under a

judgment or order, to the amount paid or levied, even

although such proceeding may be set aside or the

judgment or order reversed.

92. Private alienation after attachment void:

After an attachment shall have

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been made by actual seizure or by written order as

aforesaid and in case of attachment by written order,

after it shall have been duly intimated and made

known in manner aforesaid, any alienation without

leave of the Court of the property attached, whether

by sale, gift or otherwise and any payment of any debt

or debts or dividends or shares to the judgment

debtor during the continuance of the attachment,

shall be null and void.”

Rather than complying with the order nisi the appellant

became evasive and has assumed the role of a defender of

the Anambra State Government/judgment debtor. All that

the judgment creditor/respondent in this Court had to

establish was that the garnishee was “…indebted to such

debtor and is within State” for the Court to order that

“debts owing from such third person, hereinafter

called the garnishee, to such debtor shall be attached

to satisfy the judgment or order…” See Section 83(1)

Part (b) of the Act.

A bank is a debtor to its customer. In The Bankers’

Liability, Revised edition, 2014 by Nkiru-Nzegwu Danjuma

appears the following passage at pages 108 to 109:

“As

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regards money deposited by the customer in an

account with the banker, the nature of the banker

and customer relationship is that of contract of

debtor and creditor. The position becomes clearer

when the customer asks for his money. As a result of

an implied undertaking by the banker to repay the

customer all or part of such deposit, the banker is a

debtor for an amount deposited. If a valid repayment

demand of the customer is not met by the banker, the

customer may bring an action against it for breach of

contract. The action will be against the bank and not

against the bank manager. In Osawaye vs. National

Bank of Nigeria Ltd. (1974) NCCR 474 the debtor and

creditor relationship was restated thus:

“The relationship between a banker and customer is

one of debtor and creditor with the additional feature

that the banker is only liable to repay the customer

on payment being demanded. There is no obligation

on the part of the banker or debtor to seek out his

creditor, the customer and pay him: obligation is only

to pay the customer or some person nominated by the

customer, when the customer makes a demand or

gives a direction for payment.”

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It is the receipt of money either from or on account of

its customer that constitutes a banker into debtor of

the customer. Thus, when a banker credits the

account of a customer with a certain sum of money,

the banker becomes a debtor to the customer to the

extent of the credit. It is to be noted that the ordinary

customer rank as an unsecured creditor in the

liquidation of the bank.

The concept of debtor and creditor in the banker and

customer relationship are not static. The banker may

in certain cases become the creditor, while the

customer assumes the position of a debtor. For

instance, where a banker grants overdrafts to its

customer and debits the customer’s account with sum

or value of the overdraft, the customer becomes a

debtor to the banker to an amount equal to the credit.

Accordingly, after the reconciliation of the banker

and customer’s account, which party is the creditor,

can sue if demand for payment is not complied with.

The Supreme Court in Yesufu vs. African Continental

Bank (supra) affirmed this legal position.”

The appellant is not a “public officer” within the

contemplation of Section 84(1)-(2)

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of the Act. The bank/garnishee is a commercial entity and

can not take refuge under the provisions of Section 84(1)-

(2) of the Act to refuse to comply with the order nisi. The

fact that the judgment debtor is the Government of

Anambra State is not a matter in dispute. Section 3(1)-(3)

of the Constitution of the Federal Republic of Nigeria, 1999

as altered provides as follows:

“3(1) There shall be 36 States in Nigeria, that is to

say, Abia, Adamawa, Akwa Ibom, Anambra, Bauchi,

Bayelsa, Benue, Borno, Cross River, Delta, Ebonyi,

Edo, Ekiti, Enugu, Gombe, Imo, Jigawa, Kaduna,

Kano, Katsina, Kebbi, Kogi, Kwara, Lagos, Nasarawa,

Niger, Ogun, Ondo, Osun, Oyo, Plateau, Rivers,

Sokoto, Taraba, Yobe and Zamfara.

(2) Each State of Nigeria, named in the first column

of Part I of the First Schedule to this Constitution,

shall consist of the area shown opposite thereto in the

second column of that Schedule.

(3) The headquarters of the Government of each State

shall be known as the Capital City of that State as

shown in the third column of the said Part I of the

First Schedule opposite the State named in the first

column thereof.”

Anambra

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State has a “Government”. A “Government” is defined in

Section 318(1) of the Constitution to include “…the

Government of the Federation or of any State, or of a

local government council or any person who exercise

power or authority on its behalf.” Authority is defined to

include “Government.” A “function” includes “power

and duty”. A “person” includes “anybody of persons

corporate or unincorporate.” See Section 18(1) of the

Interpretation Act Cap. 123, Laws of the Federation of

Nigeria, 2004. Every State Government exercises powers

and functions through persons, authorities or offices, etc.

Moneys are held by such persons, authorities or bodies, for

instance in banks, or by public officers for and on behalf of

the Government. See Sections 316-317 of the Constitution.

Section 83(1) of the Sheriffs and Civil Process Act Cap. S.6

does not lay any burden on a judgment creditor to establish

how many accounts a judgment debtor has with a third

party or as in this case, the appellant. All that the judgment

creditor is to establish is that the appellant is a

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debtor to the Anambra State Government (the judgment

debtor). Section 124(1)-(3) of the Evidence Act, 2011

provides as follows:

“124(1) Proof shall not be required of a fact the

knowledge of which is not reasonably open to

question and which is:-

(a) Common knowledge in the locality in which the

proceeding is being held, or generally; or

(b) Capable of verification by reference to a document

the authority of which cannot reasonably be

questioned.

(2) The Court may acquire, in any manner it deems

fit, knowledge of a fact to which Subsection (1) of this

Section refers, and shall take such knowledge into

account.

(3) The Court shall give to a party to any proceeding

such opportunity to make submission, and to refer to

a relevant information, in relation to the acquiring or

taking into account of such knowledge, as is

necessary to ensure that the party is not unfairly

prejudiced.”

It is common knowledge that modernized banks conduct

business through the use of computers. Section 258(1) of

the Evidence Act, 2011 defines what is a “bank,” a

“banker”; “banker’s books,” “banking

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business” and “computer” as follows:

“258(1) In this Act:-

“Bank” or “banker” means a bank licensed under the

Banks and Other Financial Institutions Act Cap. B3,

Laws of Federation of Nigeria, 2004 and includes

anybody authorized under an enactment to carry on

banking business.

“Banker’s books” (and related expressions) includes

ledger, day books, cash books, account books and all

other books used in banking business.

“Banking business” has the meaning assigned to it in

the Banks and Other Financial Institutions Act, 1991.

“Computer” means any device for storing and

processing information, and any reference to

information being derived from other information is a

reference to its being derived from it by calculation,

comparison or any other process.”

Sections 51 and 52 of the Evidence Act, 2011 is couched as

follows:

“51. Entries in books of accounts or electronic

records regularly kept in the course of business are

admissible whenever they refer to a matter into which

the Court has to inquire but such statements shall not

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alone be sufficient evidence to charge any person

with liability.

52. An entry in any public or other official books,

register or record, including electronic record stating

a fact in issue or relevant fact and made by a public

servant in the discharge of his official duty, by any

other person in the performance of a duty specially

enjoined by the law of the country in which such

book, register or record is kept, is itself admissible.”

An examination of a “banker’s books” as defined in Section

258(1) of the Evidence Act, 2011 and the “computer”

printouts will reveal the number of accounts the Anambra

State Government maintains with the appellant and how

much is in the accounts to comply with an order nisi

subsequent to the making of an order absolute for purposes

of garnishee proceedings.

In my humble opinion, the argument of the learned Counsel

to the appellant is bereft of any common sense and is not

capable of convincing this Court to interfere with the

verdict of the learned trial Judge. I shall refer to the

provisions of Order 4 Rules 9(1)-(4) of the Court of Appeal

Rules, 2016 which provides as

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follows:

“9(1) On the hearing of any appeal, the Court may, if

it thinks fit, make any such order(s) as could be made

in pursuance of an application for a new trial or to set

aside a verdict, finding or judgment of the Court

below.

(2) The Court shall not be bound to order a new trial

on the ground of misdirection, or of the improper

admission or rejection of evidence, unless in the

opinion of the Court some substantial wrong or

miscarriage of justice has been thereby occasioned.

(3) A new trial may be ordered on any question

without interfering with the finfing or decision on any

other question; and if it appears to the Court that any

such wrong or miscarriage of justice as is mentioned

in Sub-rule (2) of this Rules affects part only of the

matter in controversy or one or some only of the

parties, the Court may order a new trial as to the

party only, or as to that party or those parties only,

and give final judgment as to the remainder.

(4) In any case where the Court has power to order a

new trial on the ground that damages awarded by the

Court below are excessive or inadequate, the Court

may in lieu of ordering a new trial:-

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(a) Substitute for the sum awarded by the Court

below such sum as appears to the Court to be proper;

(b) Reduce or increase the sum awarded by the Court

below by such amount as appears to the Court to be

proper in respect of any distinct head of damages

erroneously included or excluded from the sum so

awarded. But except as aforesaid, the Court shall not

have power to reduce or increase the damages

awarded by the Court below.”

The appellant has not shown any substantial wrong nor that

the decision of the learned trial judge has occasioned any

miscarriage of justice to warrant the success of this appeal.

I also dismiss this appeal.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: For the

reasons given by my learned brother, HELEN MORONKEJI

OGUNWUMIJU, JCA with which I entirely and respectfully

agree, I too would dismiss this appeal.

It is beyond controversy that one of the principal duties of a

banker to its customer is to maintain a complete

secrecy/confidentiality of the information about a

customer’s account from the day the account is closed and

is no longer operated. It is one of the implied terms of

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contract between the customer and the banker which is not

restricted to the account alone but also to any other

information which comes to the knowledge of the banker

about the customer in the course of their contractual

relationship. However the duty of the banker to maintain

secrecy/confidentiality of the status of the account and any

other information relating thereto is not absolute. It is a

qualified duty. In other words, it is subject to a number of

exceptions which were established by the English case of

TOURNIER V. NATIONAL PROVINCIAL AND UNION

BANK OF ENGLAND (1924) 1 KB 461 AT 472 as

follows:

(a) “Where disclosure is under compulsion of law.

(b) Where there is a duty to the public to disclose.

(c) Where the interests of the bank require disclosure.

(d) Where the disclosure is made by express or implied

consent of the customer”

These exceptions which are referred to as Tournier’s

principles still holds good today as they have been

confirmed in several other cases. See TURNER V. ROYAL

BANK OF SCOTLAND PLC (1999) LLOYD’S LAW REP.

BANKING 231 AT 234, CHRISTOFI V. BARCLAYS

BANK PLC (2000) 1 WLR 937 AT 946,

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OCEANIC BANK PLC VS. OLADAPO (2012) LPELR-

19670. We are concerned here with the first exception.

The banker would be justified and is in fact under a duty to

disclose information relating to a customer’s account where

the law or Statute requires the banker to so do. Disclosure

under compulsion of the law is not limited to a situation

where a Statute requires the bank to disclose information

about a customer’s account, it extends to an order of Court

to disclose the state of a customer’s account, the banker is

bound to disclose the state of the customer’s accounts. In

BARCLAYS BANK PLC V. TAYLOR (1989) 3 ALL ER.

563, i t was contended that a banker’s duty of

secrecy/confidentiality included the duty to resist any order

made by a lawful authority to look into the affairs of the

customer and the bank was under a duty to inform the

customer about the order. The English Court rejected that

contention on the ground that such duty cannot be implied

into the banker and customer relationship. See also

ROBERTSON V. CANADIAN IMPERIAL BANK OF

COMMERCE (1995) 1 ALL ER 824. The argument of the

appellant’s counsel that a disclosure of all

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the account details of the judgment debtor would be a

breach of its duty of secrecy/confidentiality must be

rejected. A banker has no option than to disclose

particulars of its customer’s accounts when it is compelled

to do so by the Court.

Reliance of the appellant on lack of specific account details

must also be rejected because the nature, number and the

amount of money standing to the credit of the judgment

debtor in its account with the appellant are matters within

the knowledge of the appellant which must be disclosed on

the order of Court to enable the Court to determine

whether or not the judgment debtor has money in the

custody of the garnishee and whether such money is

sufficient to satisfy the judgment debt. That was the

position of this Court in OCEANIC BANK PLC VS.

OLADAPO (SUPRA) and it remains unchanged.

For these and other reasons ably stated in the lead

judgment, I too dismiss the appeal. I abide by the other for

costs made in the lead judgment.

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Appearances:

N.N. Onuzuruike For Appellant(s)

C.I. Okafor For Respondent(s)

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