Ekanem Ekpo Otu V. A.c.b International Bank Plc & Anor (2006)
LAWGLOBAL HUB Lead Judgment Report
NIKI TOBI, J.S.C.
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:
“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.
- 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.
- The Plaintiff is hereby ordered to serve the Defendant the statement of claim as previously ordered by this Court within 7 days from today.
- The Defendant shall file the statement of defence within 14 days thereafter.
- The Plaintiff shall file a Reply if necessary within 7 days thereafter.
- 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
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