Hon. Gbakaan Bem & Ors v. First City Monument Bank Ltd (2024)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BIOBELE ABRAHAM GEORGEWILL, JCA (Delivering the leading judgment)

This is an appeal against the Ruling of the High Court of Benue State, Makurdi Division, Coram: M. A. Ikpambese J, in suit No. MHC/33/2011: Hon. Gbakaan Bem & Ors. v. First City Monument Bank Ltd delivered on 11/10/2011, in which the application by the respondent against the Appellants seeking to set aside the earlier judgment of the court delivered on 11/5/2011 in favour of the appellants was granted pursuant to Order 20 Rule 9 of the Benue State High Court (Civil Procedure) Rules 2007.

The appellants were thoroughly peeved with the said decision and had promptly appealed against it vide their notice of appeal filed on 13/10/2011 on seven grounds of appeal. See pages 136 -143 of the record of appeal.

With the leave of this court, the further amended notice of appeal on one ground of appeal was filed on 20/3/2023 but was deemed as properly filed on 19/4/2023.

The record of appeal was compiled and transmitted to this court on 7/3/2013 but was deemed as properly transmitted on 25/10/2021. On 19/5/2023, the respondent filed a notice of preliminary objection challenging the competence of the appeal. The parties filed and exchange their briefs.

On 17/1/2024 when this appeal was called for hearing, S. O. Okpale, Esq., appearing with D. E. Sefa – ii Esq., O. M. Iyokpo, Esq., and A. M. Owuna, Esq., represented the appellants, while P.C. Awazieama, Esq., appearing with S. Ayua, Esq., represented the respondent.

Brief statement of facts

The appellants who are elected counselors in the Local Government Areas of Benue State, and elected to serve for two years between 2004 and 2006 had successfully challenged the untimely termination of their Tenure by the Benue State Government.

However, in the course of paying the appellants their entitlements vide the account of their learned counsel, they were required to raise drafts made payable to the Benue State Councilors Forum. Regrettably, the total amount due payable to the appellants in the sum of N35,000,000. 00 were not paid to the Benue State Counselors Forum as instructed but was eventually rather paid into an individual joint account open in the name of Musa Umar and Gwaza Ayaka.

The appellants were dissatisfied with this turn of event and had consequently instituted the suit before the lower court below to recover the said sum of N35,000,000. 00 that was paid into the wrong accounts contrary to the appellants instruction.

The appellants as claimant filed their claim by means of a writ of summons 3/2/2011 against the respondent as defendant seeking in the main an order directing the respondent to pay over to the appellants the total sum of N35,000,000.00 being the sum illegally converted. See pages 1 – 10 of the record of appeal.

The respondent, which was duly served with the writ of summons and all other originating processes, failed to file its statement of defence and also did not enter appearance to the suit of the appellants within the prescribed period as allowed by the rules of the lower court.

Consequent upon this failure, refusal and/or neglect of the respondent to file its memorandum of appearance and statement of defence within the prescribed period, the appellants applied pursuant to the provisions of order 20 Rule 9 of the Benue State High Court (Civil Procedure) Rules, 2007 for default judgment to be entered against the respondent as per their claims. See pages 11 – 14 of the record of appeal.

The application for default judgment was also duly served on the respondent, which yet again did not file any counter affidavit in opposition to the application or appeared in the court on the day the said application came up for hearing. On 11/5/2011, the lower court, in line with the powers conferred on it by its rules, and in the absence of any opposition, proceeded to enter default judgment in favour of the appellants against the respondent. See pages 103 of the record of appeal.