Polaris Bank Limited v. Prima Impex Nigeria Limited (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SYBIL NWAKA GBAGI, JCA (Delivering the leading judgment)

This is an appeal against the ruling on a motion on notice filed by the appellant to set aside the order absolute made by His Lordship Hon. Justice A. O. Okuma of the High Court of Anambra State sitting at Onitsha on 13/5/2015, wherein the trial Judge dismissed the application of the appellant filed on 7/11/2014 seeking an order to set aside the order absolute that was made against the appellant on 10/3/2014.

The facts of this appeal are as follows: The respondent who is the judgment creditor obtained judgment against the judgment debtor in suit No. LD/004/2005 Prima Impex Nigeria Ltd v. Joemex Chemicals & Allied Distributors Ltd. delivered by Honourable Justice A. A. Oyebanji of the High Court of Lagos State on 7/2/2007.

By a motion ex parte filed on 10/4/2013 at the High Court of Anambra State holden at Onitsha, the respondent brought a garnishee proceeding against the appellant and twelve (12) other banks seeking to attach any money in the hands of the appellant and the other garnishees owing to the said judgment debtor in satisfaction of the judgment of 7/2/2007.

This motion ex parte was granted by Hon. Justice A. O. Okuma of the High Court of Anambra State on 18/11/2013 wherein a garnishee order nisi was made against the appellant. On 10/3/2014 the order nisi was made absolute by Hon. Justice A. O. Okuma against the appellant for its failure to file an affidavit to show cause why the order should not be made.

After the order Nisi had been made absolute, the appellant filed an application seeking to set aside the order absolute that was made against it on 7/11/2014.

The reason the appellant gave for not appearing in court to show cause in obedience to the orders of the honourable court was that he (the appellant) thought that the respondent knows where the judgment debtor maintains account since the judgment debtor has no account with the appellant.

The trial court did not find the reason presented by the appellant for not appearing in court to show cause good enough, to set aside the order absolute made against the appellant and consequently dismissed the application on 13/5/2015. Aggrieved by the ruling of the trial Judge the appellant filed the extant appeal.

The appellant filed its notice of appeal on 22/5/2015. His brief of argument was filed on 10/11/2020 but deemed as properly filed and served on 3/5/2023. His reply brief of argument was filed on 4/5/2023.

The respondent’s brief of argument was filed on 4/11/2020 but deemed as properly filed and served on 3/5/2023.

C. J. Okeke Counsel for the appellant raised a sole issue for determination to wit:

Whether the learned trial court was right in holding that there was no cogent reason in law to set aside the order absolute of 10/3/2014 having regard to the circumstances of the case.

Chidi Aloy-Nzofutachi counsel for the respondent raised the same sole issue for determination which is:

Whether the learned trial court was right in holding that there was no cogent reason in law to set aside the order absolute of 10/3/2014 having regard to the circumstances of the case.