Bank of the North Ltd. V. Mr. Saheed S. Adegoke (2006)

LawGlobal-Hub Lead Judgment Report

NGWUTA, J.C.A

In a motion on notice dated 22/3/2005 and filed on 23/3/2005 and brought pursuant to section 18 of the Court of Appeal Act and section 6(6)B of the 1999 Constitution the appellant/applicant prayed the court for the following reliefs:

“(i) An order of the court staying execution of the judgment that was delivered in this suit by the Akure High Court 8 on January 31st, 2005 pending the determination of the appeal of the appellant against the judgment by the Court of Appeal, Benin.

(ii) An order of this court setting aside the writ of execution that was issued by the Akure High Court 8 and upon which the goods of the appellant were attached by the sheriff of the Akure High Court on March 15th, 2005.

(iii) An order of this court directing the sheriff of the Akure High Court to release the goods of the appellant that were attached on March 15th, 2005 to the appellant.”

The application was founded on the following grounds:

“(1) The appellant filed notice of appeal and application for stay of execution of the judgment but no hearing notice was issued to the appellant or its counsel, that application for stay of execution would be taken on March 15th, 2005 and it was struck out by the court on March 15th, 2005.

(2) The sheriff of Akure High Court levied execution on the goods of the appellant on March 15th, 2005 the same day that the application of the appellant for stay of execution was struck out and without any hearing notice issued to the appellant or its counsel that the application would be heard.

(3) The sheriff of the Akure High Court attached the goods of the appellant within the period of 15 days that the appellant can file application for stay of execution at the Court of Appeal after its application for stay of execution has been struck out by the High Court 8, Akure.

(4) The procedure that was adopted by the Akure High Court is in violation of section 36(1) of the 1999 Constitution and Order 3 rule 3(3) of the Court of Appeal Rules”

In support of the application is a 24-paragraph affidavit. There is also a further affidavit of 14 paragraphs and another one of 13 paragraphs. The respondent filed a 25-paragraph counter-affidavit.

In view of the fact that the motion is highly contentious, learned counsel for the parties were directed to file written addresses and each complied. At the hearing of the application, learned counsel for the applicant adopted and relied on his written submission dated 14/11/05 and filed on 16/11/2005. He urged the court to grant the application. Learned counsel for the respondent adopted and relied on the written submission dated 25/12/2005 and filed the same date, learned counsel urged the court to dismiss the application.

In his written submission, learned counsel for the applicant isolated the following three issues for determination:

“(i) Whether the order of the court below dismissing the application of the appellant for stay of execution without service of the hearing notice on the appellant that the application would be heard on March 15th, 2005 is in violation of the constitutional right of the appellant to fair hearing under section 36(1) of the 1999 Constitution and therefore a nullity.