Yisi Nigeria Limited V. Trade Bank Plc. (1998)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

T

he appellant instituted an action in Kwara State High Court Ilorin demanding a reinstatement of a stun of 86.560 dollars allegedly improperly taken out or its account by the respondent without its knowledge and consent. The appellant brought an ex-parte motion and was granted an interim order of the lower court restraining the respondent from taking any further steps regarding the account of the appellant with the respondent pending the determination of the motion on notice filed by the appellant which was fixed for hearing on the 24th day of February 1997. The interim order was made on the 27th November 1996.

On the 2nd of December 1996 the respondent brought a motion which read thus:-

“Take notice that this honourable court will be moved on 5th day of December 1996 at the hour of 9 o’clock in the forenoon or so soon thereafter as counsel may be heard on behalf of the defendant for an order of the court to discharge the order made ex parte on 27th day or November, 1996 on the following grounds:

(1) The court has no jurisdiction to deal with the cause or matter in the suit having regard to the provisions or sections 7(1)(b), and (5) of the Federal High Court (Amendment) Act 1991 and Decree 107.

(2) That the said order was obtained by some material nondisclosure and mala fide.

(3) That there was no extreme or urgency for the ex parte application.

Further take notice that the defendant shall rely on all the court’s processes forming part of the record of the court at the hearing of this application,”

The appellant’s counsel wrote a letter to the court asking for adjournment so that he could react to this motion, The trial court refused to honour the letter asking for adjournment and proceeded to hear the motion in the absence of the appellant’s counsel. In its ruling dated the 6th of December. 1996 the court granted the reliefs sought and struck out the case for lack of jurisdiction.

Dissatisfied with that ruling, the appellant appealed to this court on three grounds of appeal and in accordance with the rules of court formulated four issues for determination, but abandoned issue III during the course of the argument. The remaining three issues are as follows:

(1) Was the appellant afforded a fair hearing as enshrined in S. 33 of the Constitution of the Federal Republic of Nigeria 1979 when his suit was struck out in his absence and that of his counsel after the said appellant’s counsel had applied for an adjournment to enable the appellant respond to the averments in the respondent’s affidavit?

(II) Did the learned trial Judge exercise his discretion in refusing the request by the appellant’s counsel for adjournment judicially and judiciously in view of the fact that the appellant had only 48 hours to respond to the respondent’s affidavit in support of their motion on notice?

(III) In a motion to vary or discharge an interim order under Order 8 rule 11 of the Kwara State High Court (Civil Procedure) Rules 1989 could the honourable court exceed the prayers sought by the respondent and proceed to dismiss the entire suit filed by the appellants?”