First Bank Of Nigeria Plc V. Chief Onwuka Kalu & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment)

This is an appeal by the First Bank of Nigeria PLC, against the decision of the Federal High Court Umuahia delivered on the 18th day of July 2001 per Liman J. This court had on the 26th day of September 2006 granted leave to the Appellant to file this appeal.

The 1st Respondent, Chief ONWUKA KALU, had commenced this action against the 2nd – 7th Respondents at the Federal High Court, Umuahia via a motion ex parte on the 29th day of March 2001 under the Fundamental Rights (Enforcement Procedure) Rules to enforce his fundamental rights allegedly breached by way of his trial, conviction and sentence in absentia before the now defunct Failed Bank II, Kano in charge No. FBT/II/KNZ/CR/6/97.

The 1st Respondent who went to the lower court to enforce his fundamental rights did not join the Appellant on whose complaint he was tried and convicted. The lower court on the 18th day of July 2001 gave judgment in favour of the 1st Respondent and held that the right of the 1st Respondent had been breached and declared the trial before the Failed Bank Tribunal a nullity.

The lower court per Liman J. thus held:

“I hereby remove it from the tribunal to this court for the purpose of being quashed and it is hereby quashed.”

The judgment of the lower court is on Pps. 222 – 244 of the record of appeal and it included the award of compensation to the Appellant adjudged in the quashed judgment to be 1,289,588.48 (British Pounds Sterling).

The appellant through his counsel filed a summons on notice supported by a 15 paragraph affidavit both dated and filed on the 15th day of October 2001 and also a further affidavit on the 8th day of March 2002. See pages 88 – 93 and 207 – 208 of the record of appeal. The 1st Respondent also filed a notice of preliminary objection both of which were argued before a new judge – J.T. Tshoho J. In his ruling, the application was refused, See pg. 257 – 262 of the record of appeal.

The appellant herein not being a party to the substantive suit before the lower court applied to the Court of Appeal, Port Harcourt on the 3rd day of February 2003 seeking leave for extension of time to appeal as an interested party. On the 26th September 2006, the Court of Appeal, Port Harcourt granted all the reliefs sought by the appellant as follows:

“1. That leave is granted the applicant to appeal as a person having interest in the matter delivered by the trial Judge in SUIT NO. FHC/UM/CS/128/2001.

2. That time is extended to file notice of appeal in 14 days from today

3. That the preliminary objection filed against the applicant is hereby struck out for want of diligent prosecution with cost of N2,500.00 each for two parties.”

The 1st Respondent being the International President of Children of Africa Limited obtained the sum of 1,289,588.48 (British Pound Sterling) by allegedly false pretences between the 28th day of October 1991 and the 28th day of November 1991 at Lagos. The said sum stands unpaid. The Appellant lodged a complaint against the 1st Respondent with the 4th Respondent sometime in 1996. The complaint was subsequently investigated by the police and the 1st Respondent was charged with various offences in Charge No. FBT/II/KNZ/CR/6/97 before the Failed Bank Tribunal, Kano. The 1st Respondent was then granted bail by the police on account of ill health and thereafter he travelled to England.

Throughout his trial before the Tribunal the 1st Respondent was represented by his counsel – Chief Mike Ozekhome until judgment was delivered on the 26th day of November, 1999. See, Pg. 140 – 201 of the Record of Appeal. The Failed Bank had held that the prosecution proved its case beyond reasonable doubt against the 1st Respondent in respect of count 3 of the charge and accordingly ordered him to pay compensation into the Appellant Bank in the sum of 1,289,588.48 (British Pound Sterling).