EKANEM EKPO OTU V ACB INTERNATIONAL BANK PLC & ANOR-2008

EKANEM EKPO OTU V ACB INTERNATIONAL BANK PLC & ANOR

(2008) LCN/3641(SC)

In the Supreme Court of Nigeria

Friday, January 18, 2008


Case Number: SC. 391/2001

 

JUSTICES:

NIKI TOBI, JSC (Lead Judgment) JUSTICE, SUPREME COURT

GEORGE ADESOLA OGUNTADE, JUSTICE ,SUPREME COURT

FRANCIS FEDODE TABAI JUSTICE, SUPREME COURT

IBRAHIM TANKO MUHAMMAD, JUSTICE, SUPREME COURT

PIUS OLAYIWOLA ADEREMI, JUSTICE, SUPREME COURT

BETWEEN

APPELLANTS

EKANEM EKPO OTU

AND

RESPONDENTS

ACB INTERNATIONAL BANK PLC

RATIO

WHEN A PARTY INTERESTED IN AN APPEAL NEEDS TO SEEK LEAVE AND CONSEQUENECE OF NOT SEEKING LEAVE

A party who has an interest in an appeal from the High Court to the Court of Appeal must, under section 222 of the Constitution, seek leave of either the High Court or the Court of Appeal to appeal. Leave, in this context, means permission. In other words, the party must seek permission to appeal. The rationale for the provision is to enable the court determine whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See generally  The Registered Trustees Christ Apostolic Church Nigeria v. Uffiem (1998) 10 NWLR (Pt. 569) 312; In Re Williams (No. 1) (2001) 9 NWLR (Pt. 718) 329; In Re Ojukwu (1998) 5 NWLR (Pt. 551) 673. Where leave is required either in the Constitution or in the rules of court, and leave is not sought and granted, the court has no jurisdiction to grant the motion as it is incompetent. An order on such an incompetent motion is invalid. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Savannah Bank of Nigeria Pic v. Kventu (1998) 2 NWLR (Pt. 536) 41; Ardo v. Ardo (1998) 10 NWLR (Pt. 571) 700; UTB v. Odofin (2001) 8 NWLR (Pt. 715) 296; The Nigerian Air Force v. Wing Commander Shekete (2002) 18 NWLR (Pt. 798) 129; (2003) 2SCM 79, REAN Plc v. Anumnu (2003) 6 NWLR (Pt. 815) 52. Learned counsel for the appellant quoted, what I said in the case of Auto Import v. Adebayo (2003) 2 MJSC 44 at page 60 (2003) 1SCM 154 as follows: PAGE| 16 “Rules of Court are meant to be obeyed… failure to obtain leave for extension of time to appeal within the specified time or period is a substantial irregularity which affects the props and foundations of the appeal. It is beyond mere technicality which this court cannot forgive.” I have no reason to depart from the above dictum. PER NIKI TOBI J.S.C

FAIR HEARING

The second issue is in respect of denying the appellant a hearing on the merits before the ruling and the judgment of the Court of Appeal were delivered. The submission here is that the 3rd party/respondent ought to have brought an application for joinder. As no such application was brought; the appellant was denied a fair hearing. With respect, I do not understand the position of counsel. I do not see how the principles of fair hearing can apply here. I expected the principles of fair hearing to apply if the 3rd party/respondent brought an application for joinder and the court granted same without hearing the appellant. That is not the complaint and that cannot be the complaint. And so, why the furore on fair hearing? I think I can go a bit further. The 3rd party/respondent applied to be joined as an interested party. And that application was the basis for the ruling of the Court of Appeal at pages 87 to 100 of the Record. It is clear from the Record that the respondent opposed the application by filing a counter-affidavit of twenty-seven paragraphs which the Court of Appeal in its ruling reproduced at pages 90 to 93. This apart, one Sam I. Erugo, argued against the application at page 94 of the Record. And so, where lies the denial of fair hearing? A party who has opposed an application cannot complain of fair hearing because by the opposition he has obtained a hearing and the hearing remains fair in so far or as long as he was not inhibited in the hearing but given all the opportunity to make his case. As there is no complaint that the Court of Appeal did not allow the respondent to present his opposition of the application for extension of time, the issue of lack of fair hearing fails. PER NIKI TOBI J.S.C

NIKI TOBI, JSC

 

 

Delivering the Judgment of the Court

 

Leo Attah Ekpo was the original defendant in this case. Following his death, Ekanem Ekpo Otu was substituted to take his place. That was on 16th September, 1997 in the Court of Appeal. A dead man is not in a position to handle or follow litigation. He lacks the capacity to be a party in a litigation.

 

 

The matter, which was commenced in the High Court of Lagos State, was for the recovery of the sum of N99.653.85, being amount of overdraft facilities (including interest) owned by Leo Attah Ekpo. Following the substituted service, the learned trial Judge gave judgment to the plaintiff/respondent in default of appearance of the defendant in the sum of N93,676.50. That was on 10th October, 1988. On 19th January 1990, the plaintiff/respondent applied and obtained from the court an order “to attach and sell the immovable property of the Defendant/Respondent/Debtor within the jurisdiction of the Honourable Court”. Alhaji Kabiru Rufai was the beneficiary of the sale.

 

 

On 6th February 1991, Leo Attah Ekpo brought an application to set aside both the judgment entered against him on 10th October, 1988 and the order of sale of 19th January, 1990. The learned trial Judge granted the prayers. In the Ruling, Sotuminu, J. (as she then was) said at page 132 of the Record:

 

 

PAGE| 9

 

 

“It is my view that having failed to comply with the Order of this court that the statement of claim be served on the Defendant by pasting, the Judgment obtained therefrom should not be allowed to stand. I have inherent jurisdiction to set aside my Judgment made on the 10th day of October, 1988 because of the said non-compliance of my Order and the said judgment is hereby set-aside accordingly. See Adegoke Motors vs. Adesanya (1989) 3 NWLR Part 109 page 250 at page 273.”

 

 

The learned trial Judge thereafter made the following orders and I read six of the seven orders:

 

 

“1.     The Judgment in default given against the Defendant by this Court on the 10th day of October 1988 is hereby set-aside.

 

  1. The Order for sale of the Defendant’s property made on the 29th day of January 1990 based on the said Judgment is also hereby set-aside.

 

  1. The Plaintiff is hereby ordered to serve the Defendant the statement of claim as previously ordered by this Court within 7 days from today.

 

 

  1. The Defendant shall file the statement of defence within 14 days thereafter.

 

  1. The Plaintiff shall file a Reply if necessary within 7 days thereafter.

 

  1. This matter will be heard on its merit and must be given accelerated hearing in the interest of justice.”

 

Dissatisfied, the plaintiff/respondent appealed to the Court of Appeal. In that court, Alhaji Kabiru Rufai applied for extension of time to appeal as of right against the Ruling of the learned trial Judge. He was not a party to the proceedings in the High Court. He decided to appeal because he was the beneficiary of the annulled auction sale. The Court of Appeal granted the application by extending the time to appeal by fourteen days. The Court of Appeal then heard the appeal on its merits and allowed it.

 

 

This is an appeal against the ruling and the judgment of the Court. Briefs were filed and exchanged. Appellant formulated the following four issues for determination:

 

 

“B.1.Whether the respondents (i.e. the plaintiff and the 3rd party) had a right of appeal from the High Court to the Court of Appeal against the ruling of the trial court of 17/5/1991, and if they had such right whether it was one that could be exercised without leave of either the trial High Court or the Court of Appeal?

 

B.2.Whether the ruling and the judgment of the Court of Appeal denying the defendant hearing on merit are not unconstitutional and have not occasioned miscarriage of justice to the defendant/appellant?

 

 

B.3.Whether from the record before the trial court the Court of Appeal was justified in upsetting the trial court’s ruling that the statement of defence was not served?

 

B.4.Whether Alhaji Kabiru Rufai was a proper party in the proceedings before the trial court.”

 

 

The respondent formulated the following single issue for determination:

 

 

“Whether the Court of Appeal was right to hold that the procedure under O.9 of the Lagos State High Court (Civil Procedure) Rule 1972, did not make the service of the Statement of Claim on the defendant, absolutely necessary for a judgment in default of appearance to the Writ of Summons.”

 

 

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Learned counsel for the appellant, Chief Orok Ironbar, submitted on Issues Nos. 1, 2 and 4 together that the respondent and the 3rd party intervener, under sections 220(1)(a)(b), 221(1) and 222 of the 1979 Constitution, can only appeal with leave of either the trial court or the Court of Appeal. He referred to section 241(2)(a) of the 1999 Constitution, and the cases of Nishizawa Ltd, v. Jethwani (1995) 5 NWLR (Pt. 398) 668; National Bank of Nig. Ltd, v. Weide and Co. (Nig) Ltd. (1996) 8 NWLR (Pt. 465) 150; Odu v. Aqbor-Hemeson (2003) 2 NWLR (Pt. 804) 355; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 480; Auto Import Export v. Adebayo (2003) 2 MJSC 44; (2003) 1SCM1 54 Nigerian Air Force v. Shekete (2003) 2 MJSC 63. (2003) 2 SCM, 79

 

 

Learned counsel submitted that the 3rd party/intervener was not a proper party in the main suit as he was not named in and was not concerned with the main claims before the court. He referred to Lebile v. The Registered Trustees of Cherubim and Seraphim Church (2003) 2 NWLR (Pt. 804) 399; (2003) 2SCM 39, Ochonma v. Unosi (1965) NMLR 321 and Intercontractors Nig. Ltd, v. UAC (Nig) Ltd. (1988) 2 NWLR (Pt. 76) 303.

 

 

Learned counsel contended that an appeal is not the inception of a new case. Accordingly, the issue of the purchased property, not being before the trial court for consideration, cannot be subject of an appeal concerning the proceedings before the trial court. He referred to Ifeanyi Chukwu (Osondu) Nig. Ltd, v. Soleh Boney Ltd. (2000) 5 NWLR (Pt. 656) 322. Arguing that the appellant was denied fair hearing in the Court of Appeal, counsel referred to section 33(1) of the 1979 Constitution and the case of Offor v. State (1999) 12 NWLR (Pt. 632) 608.

 

 

On Issue No. 3, learned counsel submitted that the Court of Appeal was not justified in setting aside the ruling of the trial Judge based on the non-service of the statement of claim. He referred to Jonason v. Charles (2002) 12 MJSC 1; (2002) 13SCM 68 Nigerian Air Force v. Shekete (supra) and Oniqbo v. Una (supra). He urged the court to allow the appeal.

 

 

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Learned counsel for the respondent, Chief F. O. Offia, raised a preliminary objection on Grounds 1, 2, 4, 5, 6 and 7 of the Grounds of Appeal. He contended that Grounds 1, 2 and 6 did not state full or adequate details of the misdirections complained of. He also contended that Grounds 4 and 5 do not arise from the proceedings and the judgment of the Court of Appeal respectively. On Ground 7, counsel argued that it is vague as no particulars are supplied. He also urged the court to strike out all the issues formulated by the appellant for determination based on the reasons contained in paragraph 6.08, page 11 of the respondent’s brief.

 

 

Learned counsel submitted on the lone issue that once there is proof that the writ of summons was served on the defendant/appellant, there being no provision in Order 9 for the service also of the statement of claim, the order has been complied with, and if no appearance is entered, judgment may be entered in favour of the plaintiff. He also submitted that the Court of Appeal was right to hold that since there was no requirement that the statement of claim must be served on the defendant/appellant, the trial Judge erred when she set aside the orders based on the reason that no statement of claim was served. He urged the court to dismiss the appeal.

 

 

In the Reply Brief, learned counsel for the appellant argued that the grounds of appeal and the issues attacked by counsel for the respondent are valid. Counsel submitted on the merits of the case that the unconstitutionality of the judgment of the Court of appeal was not defended by the respondent. He referred to the case of Saleh v. Monguno (2006) 15 NWLR (Pt. 1001) 25 (2006) 12 (Pt 1) SCM 384 on the sale or attachment of immovable property of a judgment debtor without an order of court.

 

 

Let me take the preliminary objection first. It is in respect of Grounds 1, 2, 4, 5, 6 and 7 and all the three issues formulated by the appellant. Grounds 1, 2 and 6 which complain of misdirection, contrary to the submission of learned counsel for the respondent, contain details of the misdirection. Apart from providing for the details in the body of the grounds, the particulars copiously provide for the details of misdirection. The particulars specify how the Justices of the Court of Appeal misdirected themselves. I do not agree with counsel that Ground 2 is incompetent and should therefore be struck out.

 

 

PAGE| 13

 

 

Learned counsel did not tell this court why the ground is incompetent. The ground which complains about misdirection is competent, and I so hold.

 

 

In Ground 4, the appellant complained that the learned Justices of the Court of Appeal erred in their judgment when they held that the learned trial Judge arrived at her ruling suo motu without calling for evidence from the parties. This ground clearly arises from the proceedings, and so, I do not agree with learned counsel that the ground did not arise from the proceedings.

 

 

In Ground 5, the appellant complained that the learned Justices of the Court of Appeal relied too heavily in their judgment on the appellant’s brief relating to facts and matters which were not established either before the trial court or before them. Again, I do not agree with learned counsel for the respondent that the ground is vague and does not state the error in law complained of and that the ground does not arise from the judgment of the court. A complaint that a court of law relied on appellant’s brief relating to facts and matters not established in the court, cannot be described as vague. Counsel is not also correct to say that the ground does not arise from the judgment. It arises and pages 298 to 313 of the Record vindicate the ground of appeal. It is quite a different thing for appellant to lead evidence in proof of the ground. I also reject the objection on Ground 7.

 

 

And that takes me to the issues. Counsel for the Respondent submitted that Issue No. 1 is inappropriate as the appeal before this court is from the Court of Appeal and not from the High Court to the Court of Appeal. On Issue No. 2, he submitted that the issue is couched in abstract terms without concrete reference to the Record of Appeal and the judgment. On Issue No. 3, counsel submitted that the issue is a repetition of Issue No. 1 and is therefore incompetent.

 

 

Issues are formulated from grounds of appeal and if they are based on valid grounds of appeal, an appellate court must consider them. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Management Enterprises Ltd. v. ABC Merchant Bank (1996) 6 NWLR (Pt. 452) 249; General Oil Limited v. Chief Ogunyade (1997) 4 NWLR (Pt. 501) 613; Chiwuba v. Alade (1997) 6 NWLR (Pt. 507) 85; Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637; Shie v. Lokoja (1998) 3 NWLR (Pt. 540)56.

 

 

PAGE| 14

 

 

An appellant has the right to complain at the Supreme Court on error in the High Court where the intermediate Court of Appeal, in its view, did not correct the error but rather justified it in its judgment. In such a situation, there is nothing wrong to trace the error from its origin, the High Court, as it is in this appeal. That does not mean that the appellant is complaining of an error by the trial Judge straight to this court. No. The complaint, in my understanding, is that the plaintiff and the 3rd party had no right of appeal from the High Court to the Court of Appeal, without leave of either the High Court or the Court of Appeal. In other words, the complaint is that right of appeal in the circumstances does not vest in an appellant as a matter of course or routine but with leave of the court. This, in my view, should be the understanding of the respondent, in which case, there ought to be no objection. The objection therefore fails.

 

 

I do not see anything abstract in Issue No. 2. In my view, the Issue is properly formulated or couched. It is the contention of the appellant that the ruling and the judgment of the Court of Appeal are unconstitutional and have occasioned a miscarriage of justice to the appellant. I do not understand what counsel meant when he said: “the issue making concrete reference to the Records of Appeal and the judgment.” If by this, he means that the issue must cite pages of the Record of Appeal and the judgment, he has got it wrong. That is never the role or function of an issue. That should be in the body of the brief arguing the appeal. But what else does he mean? I am in some confusion.

 

 

The fault counsel finds in Issue No. 3 is that it is a repetition of Issue No. 1. With respect, I do not agree with him at all. While Issue No. 1 deals with leave to appeal, Issue No. 3 deals with the locus standi of the 3rd party/respondent. The two are kilometers apart; not proximate and so one cannot be a repetition of the other. In my humble view, the preliminary objection raised by the appellant is to no avail. It is struck out.

 

 

I now take the merits of the appeal. As the Constitution which was in force when the cause of action arose is the 1979 Constitution, that is the Constitution that I will use. While section 220 of the 1979 Constitution provided for instances when appeal is of right, section 221 provided for instances when appeal is with leave of court. As the matter does not come

 

 

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within section 220, appeal will be with leave within the provision of section 221. Was the appeal of  3rd party/respondent with leave of the court within section 221 of the Constitution? The motion is at page 51 of the Record. It asked for six prayers. They are (i) extension of time to appeal; (ii) suspending the order of Sotuminu J.; (iii) suspending the ancillary order of Sotuminu, J.; (iv) suspending the order setting aside the order granting leave to sell the immovable property of the defendant/respondent; (v) stay of further proceedings of Suits Nos. ID/1002/87 and ID/24/55/50 and (vi) departure from the rules. There is no prayer for leave to appeal and that violates section 221 of the 1999 Constitution.

 

 

A party who has an interest in an appeal from the High Court to the Court of Appeal must, under section 222 of the Constitution, seek leave of either the High Court or the Court of Appeal to appeal. Leave, in this context, means permission. In other words, the party must seek permission to appeal. The rationale for the provision is to enable the court determine whether it is proper in law to grant the party permission to appeal in the circumstances of the case. See generally  The Registered Trustees Christ Apostolic Church Nigeria v. Uffiem (1998) 10 NWLR (Pt. 569) 312; In Re Williams (No. 1) (2001) 9 NWLR (Pt. 718) 329; In Re Ojukwu (1998) 5 NWLR (Pt. 551) 673.

 

 

Where leave is required either in the Constitution or in the rules of court, and leave is not sought and granted, the court has no jurisdiction to grant the motion as it is incompetent. An order on such an incompetent motion is invalid. See Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718; Savannah Bank of Nigeria Pic v. Kventu (1998) 2 NWLR (Pt. 536) 41; Ardo v. Ardo (1998) 10 NWLR (Pt. 571) 700; UTB v. Odofin (2001) 8 NWLR (Pt. 715) 296; The Nigerian Air Force v. Wing Commander Shekete (2002) 18 NWLR (Pt. 798) 129; (2003) 2SCM 79, REAN Plc v. Anumnu (2003) 6 NWLR (Pt. 815) 52.

 

 

Learned counsel for the appellant quoted, what I said in the case of Auto Import v. Adebayo (2003) 2 MJSC 44 at page 60 (2003) 1SCM 154 as follows:

 

 

PAGE| 16

 

 

“Rules of Court are meant to be obeyed… failure to obtain leave for extension of time to appeal within the specified time or period is a substantial irregularity which affects the props and foundations of the appeal. It is beyond mere technicality which this court cannot forgive.”

 

 

I have no reason to depart from the above dictum.

 

 

The second issue is in respect of denying the appellant a hearing on the merits before the ruling and the judgment of the Court of Appeal were delivered. The submission here is that the 3rd party/respondent ought to have brought an application for joinder. As no such application was brought; the appellant was denied a fair hearing. With respect, I do not understand the position of counsel. I do not see how the principles of fair hearing can apply here. I expected the principles of fair hearing to apply if the 3rd party/respondent brought an application for joinder and the court granted same without hearing the appellant. That is not the complaint and that cannot be the complaint. And so, why the furore on fair hearing? I think I can go a bit further. The 3rd party/respondent applied to be joined as an interested party. And that application was the basis for the ruling of the Court of Appeal at pages 87 to 100 of the Record. It is clear from the Record that the respondent opposed the application by filing a counter-affidavit of twenty-seven paragraphs which the Court of Appeal in its ruling reproduced at pages 90 to 93. This apart, one Sam I. Erugo, argued against the application at page 94 of the Record. And so, where lies the denial of fair hearing? A party who has opposed an application cannot complain of fair hearing because by the opposition he has obtained a hearing and the hearing remains fair in so far or as long as he was not inhibited in the hearing but given all the opportunity to make his case. As there is no complaint that the Court of Appeal did not allow the respondent to present his opposition of the application for extension of time, the issue of lack of fair hearing fails.

 

 

The third issue is in respect of the ruling of the learned trial Judge on the non-service of the statement of claim and the reaction of the Court of Appeal to the ruling. In its judgment at pages 305 to 307 of the Record, the Court of appeal said:

 

 

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“The question that has to be determined is whether the learned trial Judge was right in setting aside the judgment based on the reasons he gave, to wit that no Statement of Claim was served… In my view the procedure under Order 9 does not make the service of the Statement of Claim necessary or absolutely dispensable or essential to applying for a judgment in default of appearance to the writ of summons… All what I am saying is that the learned trial Judge was wrong in setting aside the judgment entered in default of appearance simply for the failure to serve the Statement of Claim under the provisions of Order 9 of the Lagos State High Court (Civil Procedure) Rules 1992 – since the judgment was not based on the Statement of Claim.”

 

 

A judgment, and this includes a ruling, of a court of law is valid or so presumed until it is set aside on appeal. A court of law, trial or appellate, has the power or jurisdiction to protect its judgment by providing teeth to bite any act of interference to weaken its legal strength of enforcement or enforceability in the judicial process.

 

 

In the judicial process, a court of law has the power or jurisdiction to set aside its own order in appropriate circumstances. It has the discretion to do so and once the discretion is exercised judicially and judiciously, an appellate court cannot interfere. After all, the court is the owner of the order and it can do anything with it, like every owner of property.

 

 

I do not think I will take the fourth issue. I have got enough to allow this appeal. I say by way of recapitulation that the 3rd party/respondent was wrongly admitted to participate in this matter in the Court of Appeal as he did not ask for leave to be joined as an interested party. This, to me, is the main plank for allowing the appeal. The appeal is accordingly allowed. I award N10,000.00 costs in favour of the appellant.

 

 

  1. A. OGUNTADE, JSC: I have had the advantage of reading in draft a copy of the lead judgment by my learned brother Tobi JSC. I agree with his conclusion that this appeal is meritorious. The appeal brought before the court below by the respondents should have been struck out by the court below for the reason that the 2nd respondent neither sought nor obtained the requisite leave to appeal as provided under section 222 of the 1979 Constitution. This is because the

 

 

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2nd respondent was not a party to the original suit at the High Court. See The Registered Trustees Christ Apostolic Church Nigeria v. Uffiem [1998] 10 NWLR (Pt.569) 312.

 

 

In all cases where the Constitution has provided that a party intending to appeal may only do so with leave, the court has no discretion to hear such appeal unless the necessary leave has been obtained. See Tilbury Construction Co. Ltd. & Anor. V. Ogunniyi [1988] 2 NWLR (Pt. 74) 64; Enang v. Adu (1987) 11-12 SC 25, 42; Okagbue v. Romaine [1982] 5 S.C. 133 at 170.

 

 

I would also allow this appeal with costs as granted in the lead judgment.

 

 

  1. F. TABAI, JSC: I have read in advance the leading judgment of my learned brother Niki Tobi J.S.C. and I agree that there is merit in the appeal which ought to be allowed. The result is that I also allow the appeal with costs which I too assess at N10,000.00

 

 

  1. T. MUHAMMAD, JSC: In a specially indorsed writ of summons taken from the Lagos State High Court of Justice (trial Court), the Plaintiff, African International Bank Limited but later changed name to ACB International Bank Plc, made the following claim against Mr. Leo Attah Ekpo Otu, the defendant:

 

 

“WHEREOF the Plaintiff claims from the said Defendant the sum of N99,653.85plus interest at the rate of  % per annum from 1st September, 1987 until the whole debt is liquidated.”

 

 

Now, there existed a banker-customer relationship between the parties first above mentioned. The plaintiff was a limited liability Company carrying on business as bankers with its Head office at No. 106/108 Broad street, Lagos and having branches in various places in Nigeria including one at Martins Street, Lagos. The defendant trades under the name and style of Nigerland and Company, who was a customer of the plaintiff at its branch office at Martins Street, in Lagos.

 

 

The Plaintiff at the request of the defendant granted him overdraft facilities which accrued interest and bank charges, amounted to the sum of N99,653:85. The overdraft granted was secured by a land Certificate with Registration No. MO

 

 

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3500 registered at the land Registry in Lagos. The Plaintiff sent regular statements of account of the defendant to his known address at No.20 Campbell Street, Lagos and none of the statements of account was returned unclaimed. Despite repeated demands, the defendant refused or neglected to repay the debt or any part of it.

 

 

The Plaintiff averred that the defendant had refused to enter appearance to the suit against him after the writ of summons and the statement of claim were served on him. And that the defendant had no defence to the action.

 

 

The plaintiff, as a result, filed a motion of Notice on 5th of July, 1988, for an Order:

 

 

“Entering final Judgment as per the plaintiff/aplicant’s writ of summons and statement of claim against the defendant for failure to enter appearance to this suit.”

 

 

Judgment was entered in favour of the Plaintiff on the 10th of October, 1998. It is to be noted however, that neither the ruling in respect of that Motion on Notice nor the trial court’s proceedings of the 10th of October, 1998 is contained in the printed record of this appeal. What is made available is the enrolled order made by the trial court on same date.

 

 

On the 29th day of January, 1990, an order was made by the trial court pursuant to a Motion on Notice by the Plaintiff for the attachment of defendant’s immovable property. Leave was also granted to the Plaintiff/Applicant/Judgment creditor, to attach and sell the immovable property of the defendant/respondent/judgment debtor within the jurisdiction of the trial court.

 

 

On the 6th of February, 1991, the defendant/judgment debtor filed an application before the trial court for an order setting aside the judgment of 10th of October, 1988 and the order of 29th January, 1990, in addition to other reliefs. On the 17th day of May, 1991, the learned trial judge granted the prayers. The judgment of 10th of October, 1988 and the order of 29th of January, 1990 were both set aside. Some other consequential orders were also made. Earlier on, however, and pursuant to the court’s order of 10th October, 1988 and order of attachment of the defendant’s property, one Alhaji Kabiru Rufai,

 

 

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purchased the said property for the sum of N 120,000.00 on the 27th of November, 1990. Alhaji Kabiru had since been issued with a Certificate of Occupancy by the Lagos State Government.(pp 15-17 of the record). He further obtained from the high court an order of possession of the property in dispute (p.27 of the record) and thereafter moved into the property, demolished it and commenced the re-development of same.

 

 

Among the reasons given by the defendant for seeking for setting aside was that he was never aware that an action had been instituted against him or that judgment was obtained against him.

 

 

It is to be noted that although Alhaji Rufai was listed on the Motion on Notice for setting aside as one of the 3 parties to be served with the said Motion. No service was effected on him. So, by the time the motion was heard and determined, he (Alhaji Kabiru) had not been put on notice thereof and he was never heard. As he was out of time to take any steps in the trial court, Alhaji Kabiru made an application to the Court of Appeal. The Court of Appeal granted him extension of time on the 6th of April, 1993, with which to appeal against the judgment of the trial Court of the 17th May, 1991. Thus, Alhaji Kabiru now became an appellant before the Court of Appeal by filing his Notice of Appeal on the 6th of April, 1993.

 

 

On the 16th of May, 1996, ACB Plc, filed a motion before the Court of Appeal, Lagos for an order extending the time within which to apply for leave to appeal. Leave was granted and time was extended for ACB to appeal against the trial court’s judgment of 17th of May, 1991 which set aside the judgment of 10th of October, 1988 and the order of 29th of January, 1990. Accordingly, a Notice of Appeal was filed subsequently. The Court of Appeal took both appeals, considered them and allowed them. The orders made by the learned trial judge on 17th of May, 1991 were set aside. The decisions of the learned trial judge of 10th of October, 1988 and the order of 29th of January, 1990 were restored.

 

 

Dissatisfied, the defendant/respondent and now appellant filed his Notice of Appeal which contains 7 grounds of Appeal, praying that the decision/judgment of the court below, of 8th of April, 1998 be set aside and restore the orders of the trial court of 17th of May, 1991.

 

 

On the hearing date of this appeal, learned counsel for the appellant adopted and relied on the brief he filed on behalf of the appellant. He set out four issues for determination. Learned counsel for the plaintiff/respondent adopted his brief of argument on behalf of the plaintiff/respondent. He too set out four issues therein. All these issues were reproduced by my learned brother, Tobi, JSC. I need not repeat them. I need not also repeat the submissions of the learned counsel for the respective parties as these were professionally condensed by my learned brother, Tobi, JSC in his judgment.

 

 

In my treatment of the appeal, I will comment on one aspect which is covered by appellant’s issue (3). For the preliminary objection and the remaining issues, I totally agree with my learned brother, Tobi, JSC in his reasoning and conclusion.

 

 

The bone of contention in issue (3) of the appellant’s issues is the setting aside of a ruling and an order of attachment of property made by the trial Court. I think I need to reproduce the ruling which set aside the ruling and order of 10th of October, 1988 and 29th of January, 1990 respectively. In the ruling of 17th of May, 1991 which appears on pages 61-65 of the record of appeal, the learned trial Judge held, inter alia:

 

 

“thereby make the following orders:

 

 

  1. The Judgment in default given against the defendant by this Court on the 10th day of October, 1988 is hereby set aside.

 

  1. The order for sale of the defendant’s property made on the 29th day of January, 1990 based on the said Judgment is also hereby set- aside.

 

  1. The plaintiff is hereby ordered to serve the defendant the statement of claim as previously ordered by this Court within 7 days from today.

 

 

PAGE| 22

 

 

  1. The defendant shall file the statement of defence within 14 days thereafter.

 

  1. The plaintiff shall file a Reply if necessary within 7 days thereafter.

 

  1. This matter will be heard on its merit and must be given accelerated hearing in the interest of justice.”

 

 

As indicated earlier in the Judgment, the plaintiff filed a Motion on Notice on 5th of July, 1988, praying the trial Court to enter final Judgment as per its claim in the writ of summons and statement of claim against the defendant for failure to enter appearance to the suit. In the affidavit in support of the Motion on Notice, one Oval Egbighe, averred to the following facts, on oath:

 

 

“5. That the defendant has no defence to this action.

 

 

  1. The defendant has refused to enter appearance to this suit after the writ of summons and statement of claim was (sic) served on him.”

 

 

In the enrolled order (made available in the record of appeal), the learned trial judge, pursuant to the Motion on Notice of 5th of July, 1988, made the following orders:

 

 

“IT IS HEREBY ORDERED AS FOLLOWS:

 

 

  1. that Judgment shall be entered for the plaintiff/applicant against the defendant/respondent in default of appearance for the sum of N93,676.50k being the balance of money lent out by plaintiff/appellant to the defendant/respondent in the normal course of Plaintiff’s business as banker to the defendant.

 

  1. that defendant/respondent shall pay 15% interest per annum on the judgment debt calculated from 1st day of September, 1987. Until final liquidation of the judgment debt.

 

 

PAGE| 23

 

 

  1. that defendant/respondent shall pay N400.00 costs to the plaintiff/applicant.”

 

 

Further, sequel to another motion which was reflected in the enrolled order of 29th January, 1990, but not contained in the record of this appeal, and pursuant to which an order of attachment of the immovable property of the judgment debtor was made, the learned trial judge held as follows:

 

 

“IT IS HEREBY ORDERED that leave shall be

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