Afribank Nigeria Plc V. Bonik Industries Limited (2005)

LawGlobal-Hub Lead Judgment Report

IBIYEYE, J.C.A.

The matter culminating in this appeal was instituted by the plaintiff now the respondent by means of procedure on the undefended list through a specially endorsed writ of summons filed in the Ibadan Judicial Division of the High Court of Justice, Oyo State of Nigeria.

In strict compliance with the attendant procedure for instituting any matter on the undefended list, the respondent filed a twenty four paragraph supporting affidavit.

The trial court, on the 20th October, 2000 appeared satisfied with the service of hearing process on the defendant now appellant who was absent. The learned trial Judge, in a short judgment on the same day (supra) held, inter alia,

“In the circumstances, I hereby give judgment to the plaintiff in terms of the writ of summons as follows:

(1) Judgment for a sum of N3, 723,685.68k three million, seven hundred and twenty three thousand, six hundred and eighty five naira sixty-eight kobo-(sic) being the total sum of undue excess interest charges imposed and deducted by the defendant at source in the bank accounts of the plaintiff with the defendant between July, 1994, 1995, 1996, 1997, 1998 and March, 2000 (sic).

The out of pocket expenses was N5050.00 (sic) and today is the fourth appearance of plaintiff and counsel. I therefore award a costs of N10, 000,00 accordingly (sic).”

The appellant was aggrieved by the judgment of the trial court and appealed to this court on three grounds of appeal.

Both the appellant and the respondent, as required by the pertinent aspects of the rules of this court, filed and exchanged their respective briefs of argument. At page 9 of the appellant’s brief of argument, the appellant indicated its willingness to abandon grounds 2 and 3 of the grounds of appeal. Those two grounds of appeal are accordingly struck out.

The appellant raised the following single issue from the surviving ground of appeal for the determination of this appeal:

“Whether or not the trial court lacked jurisdiction to hear and determine the said “undefended suit.”

The respondent, on its part, adopted the only issue identified by the appellant for the determination of this appeal.

At the hearing of the appeal, both learned counsel for the appellant and the respondent respectively adopted, relied and to some extent amplified the only issue in the briefs of argument of the parties.

On the only issue for consideration in this appeal, Otunba O.O. Ogunyemi, the learned counsel for the appellant, argued that the learned trial Chief Judge of Oyo State, Honourable Justice M.O. Adio, (as he then was) lacked jurisdiction to hear and determine the suit in point and that the judgment therefrom is a nullity. He stated the time tested and accepted principle on jurisdiction that it is a radical and fundamental pre requisite for adjudication and that it is of utmost importance in the administration of justice. He went on to set out the pre requisites for founding jurisdiction in any litigation and cited in support the cases of Matari v. Dangaladima (1993) 3 NWLR (Pt. 281) 266 at 275 and Madukolu v. Nkemdilim (1962) 2 SCNLR 341; (1962) 1 All NLR 584.