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Thursday 19 October 2017

Bank has no duty defending judgment debtor —Court of Appeal

Bank has no duty defending judgment debtor —Court of Appeal

Appeal Court

The Enugu Division of the Court of Appeal has ruled that a garnishee, such as a bank which is keeping custody of money or other assets in a judgment enforcement action, has no business playing the role of a defender or advocate for a judgment debtor.

The three-man bench of the court led by Justice Helen Ogunwumiju unanimously held that such garnishee had no business in protecting the money of the judgment debtor kept in its custody.

This is contained in the lead judgment delivered by Justice Ogunwumiju in an appeal filed by Fidelity Bank Plc against one Chief Emmanuel Onwuka.

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The judgment of the Court of Appeal was delivered in the appeal with number CA/E/661/2013 in May 2017, but our correspondent obtained a copy of it on Wednesday.

Fidelity Bank had filed the appeal against the ruling of Justice H.O. Ozoh of the Anambra State high court delivered on July 15, 2013.

Onwuka had obtained a judgment of N23,936,100.25 at the Contracts Evaluation Debts and Property Recovery Tribunal of Anambra State.

He subsequently obtained an order of garnishee nisi via a motion ex parte from the high court on April 9, 2013.

The order of garnishee nisi directed Fidelity Bank (as one of the three garnishees) to show cause why an order should not be made for it to pay to Onwuka the amount of the judgment debt owed by the Anambra State Government due to him.

Fidelity Bank was said to have filed an affidavit showing cause but did not furnish the court with the amount belonging to the judgment debtor (the Anambra State Government) in its custody, citing lack of specific account details as the reason for the non-disclosure.

The Anambra State High Court then made an order on July 15, 2013 directing the bank to furnish the court with the amount in all the accounts maintained by the Anambra State Government with the bank within seven days.

Dissatisfied with the ruling, the bank filed a notice of appeal on July 19, 2013.

After entertaining arguments on the appeal, the appeal court on May 4, 2017, dismissed the bank’s case.

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Justice Ogunwumiju held in her lead judgment that the appeal lacked merit and was calculated to waste Onwuka’s time.

She reiterated that Fidelity Bank had no duty to defend the Anambra State Government, the judgment debtor.

She held that the bank had, by its refusal to disclose the amount of money which the judgment debtor had in its accounts, disobeyed court order.

She held, “In one breath, the appellant (Fidelity Bank) claims it could not conduct a search because there were no enough particulars. On 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 summary, 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.

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“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 to show cause.”

The two other Justices on the panel, Justices Tine Tur and Misitura Bolaji-Yusuff, agreed with the lead judgment.

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