Adebest Telecommunications (Nig) Ltd & Anor. V. Union Bank of Nigeria Plc (2009)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON WEST, J.C.A

On the 29th day of June 2008, the Honourable Justice S.D. Kawu of the Kwara State High Court of Justice, delivered a judgment which was in favour of the Respondent and being dissatisfied with this judgment, the Appellants appealed to this court to set aside the judgment of the lower court and allow the appeal.

When the appeal came up for hearing on 6th April 2009, the Appellants and their counsel, I.A Adeniyi Esq., were conspicuously absent from the Court without permission. They have also been duly served and are aware of this date. They were present in court when the appeal was fixed for hearing on the last adjourned date.

The Respondent’s counsel J.O Ashaolu Esq., urged the court to proceed with the appeal as it is not fair for the Appellants’ counsel not to appear again in court considering that the Respondent had to file a motion before they proceeded to file their brief of argument. He therefore urged that the appeal be heard on its merits.

In the interest of peace, the court obliged that the appeal should proceed to hearing on the merit since the Appellants have not excused their absence from the court.

At the hearing, Ashaolu Esq., referred the court to the respondent’s brief of argument dated 20th day of January, 2009 and was filed on 13th February 2009, praying this court to dismiss the appeal for lacking in merit. The respondent similarly filed a preliminary objection dated 13th February 2009.

The appellant’s brief of argument dated 30th day of June 2008 and was deemed filed on 12th day of February 2009. The brief was filed by I.A. ADEYI Esq of counsel to the appellants who was not present in court on the day this appeal came up for hearing.

After a lot of arguments pertaining to the absence of the appellants and their counsel it was resolved that this court shall proceed with the hearing of the appeal without the appellants and the appellants’ brief dated the 30th day of June 2008, and deemed properly filed on the 12th day of December 2008, is hereby deemed duly argued before this court pursuant to the provision of Order 17 Rule 9 sub 4 of the Court of Appeal Rules 2007.

The appellants did not file any reply to the preliminary objection.

Thus the preliminary objection will be treated on the merit.

The notice of preliminary objection was brought pursuant to Order 3 Rule 15(1) of court of appeal rules, to the extent that:-

i. issues 3 and 4 as formulated by the Appellants does not relate to grounds 4 and 5 of the grounds of appeal.

ii. the grounds of appeal numbered ground 5 as contained in the notice of appeal dated 12th day of July, 2006 and filed the same day is incompetent and fortiori should be struck out in limine on four grounds to wit:

(i) Issues 3 and 4 as formulated by the Appellant does not relate and run parallel to grounds 4 and 5 of the grounds of appeal.