Many Judgement Creditors have been frustrated in their bid to
reap the fruits of judgments via garnishee proceedings by reason of
their understandable inability to provide account particulars of
the respective Judgment Creditors in the applications especially
where the trial court insists on having such particulars before
granting the requests.
In a decision handed down by Enugu division of the Court of
Appeal on the 4th day of May 2017 in Fidelity
Bank Plc v Chief Emmanuel Eze Onwuka (2017)
LPELR-42839(CA), the poser appears to have been repeatedly
addressed and resolved by the court as would be seen later on.
Facts
The Respondent obtained a judgment against Anambra State and
subsequently obtained an Order Nisi at the High Court directing
Fidelity Bank to show cause why an order absolute should not be
made.
Instead of filing affidavit showing the judgment debtor’s
account balance, the bank filed an affidavit 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 High Court consequently directed the Appellant (Fidelity
Bank) to furnish the Court with the amount in all the accounts
maintained by the Anambra State Government with the Appellant
within seven (7) days but the bank appealed.
The Decision
At the Court of Appeal, the Appellant distilled as one of the
two issues in its brief of argument thus:
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?
In resolving the issue, the Enugu division of Court of Appeal,
per Ogunwumiju, JCA held thus:
“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 Sheriffs
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 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.” (Emphasis mine)
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 continues even after the
termination of 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 third party. However, there are
exceptions to this duty of confidentiality owed a customer by the
bank…..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. 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.”
Specifically, on the issue, Ogunwumiju, JCA held at page 20 of
the report thus:
“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.” (Emphasis
mine)
Conclusion:
From the decision of the Court of Appeal (as the writer is
unaware of a Supreme Court decision on the issue), it is seen that
Judgment Creditors can now, without fear of frustration, approach
the relevant courts for garnishee proceedings against banks which
hold funds belonging to Judgment Debtors even where the Judgment
Creditors are not armed with particulars of the accounts as held in
the reviewed case of Fidelity v Onwuka and the earlier decision of
Oceanic Bank v Mbaba (supra).
Olumide Babalola writes from Lagos State.