Afribank (Nigeria) Limited V. Caleb Owoseni (1994)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A. 

This appeal as clearly manifested from the Notice of Appeal dated 17th October 1991 and filed on the same day by the appellant at the lower court is against two distinct decisions of Ilorin High Court of Kwara State presided by Ajannah J. delivered on 14th June, 1991 and 9th October 1991 respectively.

The respondent who was the plaintiff at the court below sued the appellant as defendant claiming the following reliefs:-

(1) “A declaration that the detention of the plaintiff’s original copy of his customary Right of Occupancy No. 1352 by the defendant which was given to the defendant by the plaintiff at the defendant’s request at Ilorin, since 1982 inspite of repeated demands made by the plaintiff to the defendant at its Branch office, Ilorin to release the said Customary Right of Occupancy to the plaintiff, is illegal.

(2) An order for the release of the said Customary Right of Occupancy No.1352 to the plaintiff by the defendant.

(3) Twenty five thousand naira (N25,000.00) as general damages against the defendant for the illegal detention and or conversion of the said Customary Right of Occupancy of the plaintiff bearing No. 1352.”

The writ of summons filed by the respondent was accompanied by a Statement of Claim both of which were duly served on the appellant. The appellant as defendant then filed a memorandum of appearance under protest before filing a motion seeking orders striking out the issuance and service of the writ of summons. The motion was fixed for hearing on 5/12/90 but on that date when the appellant’s counsel failed to turn up at the lower court to move the motion, the motion was struck out. Again on 5/12/90, a similar motion was filed by the appellant which motion was heard and dismissed by the lower court. Consequent upon the dismissal of the appellant’s motion, and the failure of the appellant to file its Statement of Defence, the respondent on 13/12/90 filed a motion before the lower court seeking for an order to enter judgment in default of defence. Before this motion could be heard, the appellant had on 13/3/91 filed a motion for extension of time to file its Statement of Defence and the two motions were fixed for hearing on 21/3/91. On that date, learned counsel for the appellant failed to turn up in court in time to move his motion until learned counsel for the respondent had almost concluded arguing his motion for judgment. All the same, the learned trial Judge heard the appellant’s motion for extension of time to file its Statement of Defence after the respondent’s motion for judgment had been withdrawn and struck out. The appellant was granted two days within which to file its Statement of Defence and to pay N350.00 costs to the respondent before the next adjourned date. The ruling of the lower court in this respect was delivered 21/3/91 but the Statement of Defence of the appellant was not filed until 26/3/91, one day outside the period allowed by the order of the lower court of 21/3/91. Apparently, after realizing that the appellant’s Statement of Defence was filed out of time, on the same day 26/3/91, the respondent filed another motion asking for judgment. This motion which did not come up for hearing at the lower court until 30/5/91 was served on the appellant on 14/5/91. When the motion for judgment came up for hearing on 30/5/91, the appellant which did not file even a counter affidavit to the respondent’s motion or another motion for extension of time to properly file its Statement of Defence, applied for adjournment which application was opposed by the respondent. In a considered ruling, on the same day 30/5/91, the learned trial Judge refused the application for adjournment and proceeded to hear the respondent’s application for judgment. In his ruling delivered on 14/6/91 the learned trial Judge entered judgment for the respondent and granted all the reliefs sought by the respondent although only N6,000.00 was granted out of the N25,000.00 general damages claimed with costs. The Notice of Appeal filed by the appellant on 17/10/1991 is partly appealing against this judgment.

However, the appellant on 18/6/91 had filed a motion on notice seeking an order setting aside the judgment of the lower court of 14/6/91. After hearing the motion, the learned trial Judge in a considered ruling delivered on 9/10/1991 dismissed the appellant’s application. It is at this stage that the appellant which was not satisfied with the judgment of 14/6/1991 and the ruling of 9/10/1991 appealed against both decisions of the lower court by filing a single Notice of Appeal at the lower court on 17/10/1991, barely eight days after the ruling of the lower court refusing to set aside its own judgment but more than 4 months after the judgment of the lower court delivered on 14/6/1991 which is the subject of this same appeal. The Notice of Appeal which contains 9 grounds of appeal complained against both the judgment of 14/6/1991 and the ruling of 9/10/1991. The 9 grounds of appeal with their particulars are:-

GROUNDS OF APPEAL

1. “The learned trial Judge erred in law in giving judgment to the plaintiff when the totality of the proceedings is in violation of sections 6. 33 and 236 of the Constitution of the Federal Republic of Nigeria 1979.

PARTICULARS

(i) The judgment of the court was given against the appellant without adequate opportunity of hearing and defence on the merit.

(ii) The court had the Constitutional duty to allow all the parties in a suit full opportunity of hearing on the merit and a decision delivered on the merit.

(iii) The court on the alter of speed sacrificed the justice of the case in violation of the Constitution of the Federal Republic of Nigeria. 1979.

2. The learned trial Judge erred in law by holding that the ‘Statement of Defence’ filed out of time extended by the Court was illegal, null and void and proceeded to give a default judgment when there was before the court a ‘Statement of Defence’ that disclosed a credible defence.

PARTICULARS