Abdul Kadir Aliyu & Ors V. Intercontinental Bank Plc & Anor (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Ruling of the High Court of Kaduna State in Suit No KDH/KAD/110/2003 delivered by Honorable Justice A. A. Othman on the 12th of February, 2004. The first Respondent, as plaintiff, commenced this action against the Appellants and the second Respondent, as first to fourth defendants, in Suit No KDH/KAD/110/2003. By an Originating Summons Ex Parte dated the 24th of February, 2003 and taken out in the High Court of Kaduna State the first Respondent posed some questions for determination and then prayed for:

i. An order of the Honorable Court for the issuance of a summons and/or originating summons requiring the administrators (i.e. first to third defendants herein) of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased) and the fourth defendant to attend before this court and show cause why an order for the administration of the property of the deceased should not be made.

ii. An order of interim injunction restraining the administrators (defendants herein) of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased), their agents, privies and/or any person whosoever acting on their instructions, from henceforth administering, tampering with, removing and dealing in anyway whatsoever, with the personal property and estate of and/or any of the properties of Alhaji Mahmud Mundi Aliyu (deceased) wheresoever lying, located and/or situated, particularly the sum of N6, 123,280.16k credit balance or any current credit balance whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) with Union Bank of Nigeria Plc Kaduna Branch current account pending the determination of the court’s summons and/or originating summons in this suit.

iii. An order of interim injunction restraining Union Bank of Nigeria Plc (fourth defendant herein) its agents, privies, staff and/or anybody whosoever acting on its instructions from releasing and/or further releasing to the administrators of the property and estate of Alhaji Mahmud Mundi Aliyu (deceased), their agents, privies and/or anybody whosoever acting on their behalf and/or instructions, any sum of money and/or further sum of money from the N6,123,280.16k credit balance or any current credit balance whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) with Union Bank of Nigeria Plc Kaduna Branch pending the determination of the court’s summons and/or originating summons in this suit.

The motion was supported by an affidavit with exhibits attached. Along with the application, the first Respondent also filed an Originating Summons dated the 24th of February, 2003 wherein it again posed some questions for determination and it sought the following prayers:

i. A declaration that Alhaji Mahmud Mundi Aliyu is indebted to the plaintiff (i.e. Intercontinental Bank Plc) in the sum N10,753,609.72k as admitted and acknowledged by the deceased’s administrators and as reflected and endorsed in the 21st of January, 2003 letters of administration issued by the Kaduna State High Court of Justice Probate Division.

ii. A declaration that the plaintiff (i.e. Intercontinental Bank Plc) is entitled to 25% bank interest charges on the said debt of N10,753,609.72k from January 2003 till liquidation of the debt, being the agreed interest rate between the deceased and the plaintiff.

iii. An order for the administration of the property/estate of Alhaji Mahmud Mundi Aliyu (deceased) by this Honorable Court.

iv. An order that the sum of N6,123,280.16k and/or any credit sum whatsoever in Alhaji Mahmud Mundi Aliyu (deceased) Union Bank of Nigeria Plc Kaduna Branch accounts be paid to the plaintiff (i.e. Intercontinental Bank Plc) towards the settlement of the deceased’s indebtedness in the admitted sum of N10,753,609.72k plus interest on same to the plaintiff.

The originating summons was supported by an affidavit with exhibits attached. The lower Court heard the Originating Summons Ex Parte on the 29th of February, 2003 and it granted the prayers sought thereon and it adjourned the Originating Summons to the 20th of March 2003 for hearing. The first Respondent thereafter filed a motion on notice dated the 7th of April, 2003 seeking to amend the Originating Summons.

The Appellants in response filed a notice of preliminary objection dated the 30th of April, 2003 challenging the competence of the suit, the competence of the motion on notice dated the 7th of April, 2003, the competence of the Originating Summons Ex Parte and of the orders made by the lower Court on the 29th of February, 2003. The lower Court took arguments on the notice of preliminary objection and it dismissed same in a Ruling delivered on the 12th of February, 2004. The Appellants were dissatisfied with the Ruling and they caused a notice of appeal dated the 23rd of February, 2004 to be filed against it and it contained five grounds of appeal.

In arguing the appeal, Counsel to the Appellants filed a brief of arguments dated the 5th of May, 2005 and it consisted of eleven pages. In response, Counsel to the first Respondent filed a brief of arguments dated the 12th of April, 2006 and it was deemed properly filed on the 14th of June, 2006 and it consisted of thirty pages. Counsel to the Appellants filed a reply brief dated the 15th of February, 2010. The reply brief was obviously filed out of time and there is nothing in the records of this Court to show that the Appellants obtained an order of Court to regularize the process, the reply brief will thus be discountenanced. The second Respondent filed no processes in the appeal. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments.

Counsel to the Appellants distilled five issues for determination in his brief of arguments and these were: