African International Bank Ltd V. G. M. O. Nworah & Sons Company Ltd (2001)

LawGlobal-Hub Lead Judgment Report

AKPABIO, J.C.A.

This is a ruling in respect of a preliminary objection raised by Afam Akputa Esq., learned counsel for the respondent, against an application brought on behalf of the appellant/applicant for an order restoring their appeal dismissed on 10/10/2000 for non-compliance with order 3 rule 20 of the Court of Appeal Rules. The full application of the appellant/applicant (hereinafter to be referred to simply as the “applicant”) was worded as follows:-

“TAKE NOTICE THAT the Honourable Court will be moved on the Thursday 18th day of January, 2001 at the hour of 9 O’clock in the forenoon or so soon thereafter as counsel can be heard on behalf of the above named appellant/applicant praying the court for the following orders:-

1. AN ORDER setting aside certificate of noncompliance, dated 4/9/2000, issued in this appeal by the Assistant Chief Registrar of Enugu State High Court purportedly pursuant to Order 3 rule 20 of the Court of Appeal Rules on ground that the same is premature, malicious and/or fraudulent, and null and void; or
2. IN THE ALTERNATIVE, an order restoring the appeal dismissed on 10/10/2000; and
3. If the appeal is restored, an order extending the time within which appellant shall comply with provisions of Order 3 rules 10 and 11 of Court of Appeal Rules;
4. AN ORDER directing the Assistant Chief Registrar of Enugu State High Court to compile and transmit to the court the record of appeal in this appeal within one month from this order or as the court may deem fit;
5. AN ORDER restraining the respondent, the Assistant Chief Registrar of Enugu State High Court and United Bank for Africa Plc or any of them from withdrawing, interfering with, releasing or otherwise dealing with the judgment sum of N14,960,094.03 save as deposit in interest yielding account pending determination of this application and/or the appeal;
6. AN ORDER staying execution of Enugu State High Court judgment for N14,960,094.03 dated 8/2/2000, sequel to order of the court dated 10/10/2000 until final determination of this application and/or the appeal.

AND FOR SUCH further or other orders as the court may deem fit to make in the circumstances. Dated the 22nd day of December, 2000.”

The said application was supported by three affidavits viz;- 1st, a 39-paragraph affidavit sworn to by one Mohammed Sani Tsaibu, a Senior Manager of the Enugu Branch of the applicant bank, sworn to at the Appeal Court Registry, Enugu on 15th day of January, 2001; and a second 29-paragraph affidavit sworn to by Zanda Izundu, the learned Legal Practitioner representing the applicant in this application, sworn to on the same date and place, and the 3rd one a 19-paragraph affidavit sworn to by one Chiegwu Chioma (Miss), a law office secretary in the chambers of Zanda Izundu & Co., the learned counsel for the applicant, also sworn to on the same date and place. Mr. Izundu’s affidavit was supported by 25 Exhibits marked as Exhibits A, B, B1, B2, B3, C, D, E, F, FF, G, GG, H, H1, J, K, KI, K2, K3, K4, K5, L, M, N, & N1. It is not necessary to describe each of these exhibits, as the objection was argued purely on law. However, the sum total of the three affidavits and the numerous exhibits in support was that on 8/2/2000, the Enugu State High Court NO.2 presided over by Agbo J. gave judgment in Suit No, E/324/92, in favour of the respondent, awarding it N14,960,094.03 as special and general damages for breach of contract and N5,000.00 costs. Following an appeal lodged against the said judgment by the applicant, and a subsequent application for stay of execution pending determination of the appeal, the lower court granted the said stay of execution conditioned on the judgment sum being deposited at United Bank for Africa Plc, Station Road Branch, Enugu as requested by the respondent. On 31/8/2000, the applicant duly complied with the Court’s Order by paying the said sum of N14,960,094.03 to the U.B.A. and notifying the Assistant Chief Registrar (A.C.R) Enugu State High Court accordingly. Thereafter applicant’s solicitor by name Zanda Izundu Esq., informed the applicant that he was expediting the hearing of the appeal, by beginning to compile the records of appeal himself to avoid delay in the High court Registry.

However, in spite of the above, and without inviting the applicant’s counsel to come and settle records, the A.C.R. of the High Court, one Mr. A.O. Iloputa, forwarded a “Certificate of noncompliance” with conditions of appeal thereafter dismissed the appeal. Neither the applicant nor its counsel was aware of any noncompliance, nor about cause of issuing certificate or the dismissal of the appeal.

Ultimately, the applicant became aware of the above facts for the very first time on 12/10/2000 when the A.C.R. personally went to the U.B.A. Branch at Station Road, Enugu demanding immediate release of the deposited sum to the respondent armed with a Court of Appeal Order of dismissal. It was at that juncture that the UBA Manager rang the applicant bank to inform them of what was happening. It was on knowing these facts that the applicant briefed another counsel by name O. Akpamgbo Esq., to apply to the Court of Appeal, Enugu to restore their appeal that was erroneously dismissed, as their regular counsel Mr. Zanda Izundu was out of the country at that time.

Finally, the applicant deposed that they never received any invitation from the A.C.R. or the High Court Registry to come to court for settlement of records; they were never requested to pay the paltry sum of N1,318.00 for compilation of records, nor were they ever informed that their appeal was dismissed by the Court of Appeal for “non-compliance”. They therefore prayed the court to restore their appeal to be heard on the merit.

It was in response to the above averments of the applicant that the respondent counsel filed his 8-points preliminary objection dated and filed on 16/1/2001. For completeness, the said preliminary objection is reproduced in full as follows:-

“NOTICE OF PRELIMINARY OBJECTION BY THE RESPONDENT (HEREIN) ORDER 3 RULE 15

TAKE NOTICE that the respondent herein named intends at the hearing of the appellant/applicant’s motion on notice filed on 15/1/2001 rely upon the following preliminary objection on points of law, notice whereof is hereby given to you viz:

“That the application filed on 15/1/2001 for hearing on 18/1/2001 is incompetent and an abuse of process of court; the honourable court lacked both the competence and jurisdiction to entertain the application and the reliefs sought therein.”

GROUNDS OF THE OBJECTION

1. The application is incurably defective and the court lacks the jurisdiction to entertain same:-

(a) The grounds in support of their application have not been provided as required by law. Order 3 rule 3(1) Court of Appeal Rules (1981) as amended.