Nigeria Deposit Insurance Corporation (Liquidator, Hallmark Bank Plc) V. Mr. Ben Okeke & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

This appeal is against the ruling of the High Court of Lagos State delivered by Onyeabo, J on 17th July, 2008 wherein the appellant’s preliminary objection challenging the competence of a suit filed afresh by the 1st and 2nd respondents, was dismissed.

The 1st and 2nd respondents in the court below were the plaintiffs in suit No. LD/1654/01 against the appellant and the 3rd and 4th respondents as defendants.

The appellant and the 3rd respondent as 1st and 2nd defendants filed a counter claim against the 1st and 2nd respondents, who were the plaintiffs, in addition to their respective statements of defence.

The 1st and 2nd respondents claim was struck out by the lower court on 25th January, 2005 for want of diligent prosecution, and the counter claims filed by the appellant and the 3rd respondent were set down for hearing.

The 1st and 2nd respondents subsequently filed an application dated 27th June, 2006 seeking for relistment of their suit. The lower court heard the application and dismissed it on 11th May, 2007. The 1st and 2nd respondents subsequently refiled their suit afresh on 2nd October, 2007 against which the appellant filed a notice of preliminary objection dated 3rd March, 2008 challenging the competency of the suit as refiled. The appellant’s preliminary objection was heard and the lower court in its ruling delivered by Onyeabo, J. on 17th July, 2008 dismissed the said preliminary objection. The appellant filed a notice of appeal dated 25th July, 2008 and filed on 28th July, 2008 against the dismissal order premised on five grounds, which are reproduced less their particulars as follows:

“1) The learned trial judge erred in law when in holding as he so did that sole issue decided in the ruling of Phillips J. in suit No. LD/1654/2001- Ben Okeke & Anor v NDIC & 2 Ors on the 11th May, 2007 was the question of the re-listing of the claimants’ claims in the suit; and the said decision did not touch on the merits of the substantive suit.

2) The learned trial judge erred in law when he held that the case of Ivbiyaro v Francis (2001) 46 WRN 70 was applicable and proceeded to apply the same in the particular circumstances of this case.

3) The learned trial judge erred in law when he held as he so did that, the institution of the present suit does not constitute an objectionable attempt on the part of the claimants to re-list their claims in suit No. LD/1654/2001 where the claims’ application for orders inter alia for re-listing have been earlier heard on the merits and dismissed by the High Court of Lagos State per Phillips J. in that suit on the 1th May, 2007.

4) The learned trial judge erred in law in failing to pronounce upon and/or make a determination on the issues of incompetency, abuse of process, contempt and/or disobedience of orders of court and want of jurisdiction urged upon the court on behalf of the appellants in the premises of the institution of the claimants’ suit.

5) The learned trial judge’s decision and/or ruling complained of is perverse in that he failed properly to evaluate the material facts and/or evidence on the records and the issues thereon in the premises of the appellants’ notice of preliminary objection and the institution of the claimants suit and proceeded to dismiss the said objection and thereby occasioned a substantial miscarriage of justice to the utmost prejudice of the appellant.”

The appellant raised one issue from each of the five grounds respectively as follows:

“1) Whether an order dismissing an application for orders, inter alia, of extension of time and for re-listing a suit earlier struck out does not touch upon the competency of the said suit and/or operates, until set aside by a court of competent jurisdiction, to estop a claimant from purporting to re-list the same by way of a fresh suit?

2) Whether the decision in the case of Ivbiyaro v Francis 2002) 1 NWLR (pt 747) 33 at 45; (2001) 46 WRN 70 could properly be said to be applicable in the particular circumstances of this