Haruna Mamman Vatsa & Ors V. First Bank Of Nigeria Plc. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The Appellants are children of one Safiya Vatsa, the defendant in Suit No. C/83/88 commenced by the Respondent at the Calabar Judicial Division of the Court of Cross River State through the Writ of Summons filed on 3rd June, 1988.

The Respondent claimed as follows:

“(a) N449,906.19 and interest at the rate of 11’bd% per centum calculated at monthly rests (sic) until the principal sum and interest are finally liquidated.

AND BY WAY OF SPECIFIC PERFORMANCE

(b) An order that the defendant executes an Equitable Mortgage of the property as registered as 31/31/160 in the Calabar Lands Registry, to the Plaintiff.”

The Respondent did not file any statement of claim but headed the claim in the writ as “PARTICULARS OF CLAIM”. The Respondent sought and obtained the order of court to serve the writ by substituted means which was effected through publication in the 11th November 1988 edition of the Daily Newspaper called the Nigerian chronicle. The Defendant (Appellants) did not file any process in reaction to the service of the Writ.

Meanwhile by the motion ex-parte filed on 3rd April, 1989, the Respondent sought:

1. to amend the PARTICULARS OF CLAIM,

2. to deem the particulars of claim attached to the motion as properly filed,

3. to have judgment entered for the Plaintiff upon the amended particulars of claim.

After hearing the Application, the Court by its order of 2nd June, 1989 granted leave to amend the Particulars of Claim within 7 days and to deem the amended Particulars of Claim so filed as properly filed “subject to the payment of the requisite fees to be assessed by the Registrar Litigation.” The leg seeking judgment was refused, and the suit was adjourned to 30th June, 1989 for mention.

The record shows that the Amended Particulars of Claim was to alter the leg (b) of the claim to read:

“(b) An order of foreclosure and/or sale of the property registered as 31/31/160 which PARTICULARS the defendant gave to the Plaintiff.”