Fidelity Bank Plc V. Mr. Francis Okwuowulu & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This is an appeal against the judgment of Honourable Justice L. A. OKUNNU sitting at the High Court of Lagos State, delivered on 12th October 2006. The facts that led to this appeal are as follows:

The first respondent who was the claimant at the lower court filed a writ of summons and statement of claim for the following reliefs against the 2nd Respondents:

“a. A declaration that the claimant is the allotee subject only to the expiration of the leasehold of the defendants, of all the shop known as zone B, Block 3A, shop 68.

b. An order of perpetual injunction, subject only to the expiration of the leasehold of the Defendants, restraining the Defendants by themselves, agents, servants or otherwise interfering with the possession of the claimant over all that shop known as Zone B, Bloc 3A, Shop 68,”

On the 16th of March 2006 when the case came up at the lower court for a pre trial conference (P.T.C.); the 2nd Respondent was not present in court to participate in the said pre trial conference. The 1st Respondent’s counsel pursuant to order 25 Rule 6 of the High Court of Lagos State Civil Procedure Rules 2004 moved the court to enter judgment against the 2nd Respondent for failure to participate in the said pre trial conference. The lower court on the said 16th day of March 2006 entered judgment against the 2nd Respondent for failure to participate in the pre trial conference.

Thereafter, the 1st Respondent prayed the lower court for the following orders:

“1. An order nisi of Garnishee attaching debts and/or monies from the Garnishee to the judgment debtor for satisfaction of the judgment debt in this case.

2. An order directing the Garnishee to appear before this Honourable Court to show cause why they should not pay over to the judgment creditor the monies in the accounts of the judgment debtor for the purpose of satisfying the judgment.

3. And for such further order as this Honourable Court may deem fit to grant in the circumstances.

After hearing the 1st Respondent’s counsel, the lower court made the following orders:

“1. A Garnishee order nisi is made to the effect that sums of money which stands to the credit of the judgment debtor in its account with the garnishee be and are hereby attached to satisfy the judgment debt herein as well as the costs of these garnishee proceedings.

2. The garnishee is to appear before this court on the 4th day of September 2006 to show cause why an order should not be made upon it for payment to the judgment creditor of the amount of the judgment debt owed by the judgment debtor.

3. A copy of this order shall be served on the judgment debtor.