Allied International Industries Limited & Ors v. Ecobank Nigeria Limited & Ors (2023)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

CHIMA CENTUS NWEZE, JSC (Delivering the leading judgment)

The appellants commenced an action before the High Court of Kano State. They claimed declaratory and monetary reliefs. The defendants were, duly, served with all the processes.

The Honourable Chief Judge of the Kano State High Court transferred the matter to the State High Court, sitting in Danbatta, since the matter could not be heard and determined during the court’s annual vacation.

Sometime in 2010, learned counsel for the appellants approached the trial court requesting that the matter be set down for hearing. Accordingly, appellants’ application was granted and a date was fixed for hearing on October 12, 2010. The plaintiffs’ counsel failed to appear in court. The suit was, therefore, struck out for want of diligent prosecution.

The first and second respondents, as plaintiffs, therefore, brought application ex parte to relist the suit that was struck out. The appellants were, naturally, not put on notice since the application was filed ex parte. The first and second respondents moved their application. The trial court granted same. It proceeded to hear the matter and eventually entered judgment in favour of the respondents on October 27, 2011.

The first respondent’s contention was that it was not aware of the judgment until when the Bailiff of Court went to its premises to levy execution on November 11, 2011. This awareness prompted an application to set aside the judgment of the trial court which the first respondent alleged was entered in default of appearance.

Worse still, the application to relist the appellants’ suit was heard and determined ex parte.

The first respondent also prayed for a restraining order against the execution by the Chief Registrar of Kano State High Court. The trial court heard the application but refused to grant same. Instead, it stayed further execution of the judgment of the court.

Disenchanted with the decision of the trial court, the first respondent lodged an appeal before the Court of Appeal, Kaduna Judicial Division, (hereinafter referred to as “the lower court”) via a notice of appeal. In response, the appellants, who were the respondents at the lower court, raised a preliminary objection to the first respondent’s grounds of appeal.

Their grounds of objection were that the appeal before the lower court was an interlocutory appeal and also that the grounds of appeal were grounds of mixed law and fact. No leave was ever sought and obtained at the lower court, thereby rendering the appeal incompetent.

The preliminary objection was taken by the lower court. After hearing learned counsel on both sides, it ruled that the said objection was misconceived. It, [the lower court], gave its reasons at page 382 of the record. For its bearing on this judgment, I take liberty to set out part of the reasons in extenso:

“This appeal, from the facts and circumstances that brought it about, appears to pose no difficulty in holding that even from the conduct of the lower court that it was a final decision, the lower court after entering judgment went ahead to execute same, I am sure it is purely academic to submit that appellants’ appeal is against an interlocutory order, a decision is said to be final, when the court that gave it has fully accomplished its duty and has no further authority over the matter anymore.

Since the learned trial Judge refused the application to set aside the judgment, from that point he no longer has any further role in the matter, Alor v. Ngene (2007) 17 NWLR (Pt. 1062) 163.

I am of the opinion that the respondents’ preliminary objection is misconceived and it must be overruled. It is hereby accordingly overruled.”