Broad Bank Of Nigeria Ltd V. Zamogas Nigeria Ltd. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

OBANDE F. OGBUINYA, J.C.A. (Delivering the Leading Judgment)

In the High Court of Kano State, presided over by Hon. Justice W.A. Umar Rano, the appellant bank filed a specially endorsed Writ of Summons, in suit No. K/389/2001, on 15/06/2001. On the said Writ of Summons, the appellant endorsed its claims for declarations, order and injunction against the respondent. See page 3 of the record.

On being served with the appellant’s writ, the respondent entered appearance on 06/07/2001, See page 105 of the record.

Subsequently, respondent filed a statement of defence containing a counter-claim on 22/01/2002 as contained on pages 86 -89 of the record.

Before the lower Court, the matter came up for mention, on 16/06/2003. On that day, the appellant and its counsel were absent. The respondent’s counsel prayed the court below to strike out the matter and applied for a date to prove the respondent’s counter-claim. The learned trial Judge granted the double-barrelled application and ruled: “The plaintiff’s claim is struck out. Case is adjourned to 9/7/2003 for the defendant to prove his counter claim- Hearing notice to the plaintiff.” See page 5 of the record.

On 09/07/2003, the Court below did not sit and the matter was adjourned to 18/07/2003. On 18/07/2003, the respondent adduced evidence in support of its counter-claim by fielding two witnesses, DCCW1 and DCCW2. Thereafter, on the application of the learned counsel for the respondent, the court below adjourned the case to 21/07/2003 for Judgment. On that 21/07/2003, the learned trial Judge delivered his Judgment wherein he rendered judgment to the respondent in sum of N13,330, 657 .56, ten percent (10%) post judgment interest on that judgment sum and N22,000.00 costs.

Sequel to that judgment, the appellant filed a motion on notice, on 27/08/2003, to, inter alia, set aside the judgment and execution on it. The said motion was heard, argued and opposed, on 06/10/2003.

The learned trial Judge, in a considered ruling delivered 27/10/2003, dismissed the appellant’s application.

Aggrieved by the decision of the court below, the appellant filed a four-ground of appeal, dated 17/10/2003, on pages 202 204 of the record, praying this court for: “An Order setting aside the judgment of the lower court and in its place order a retrial de novo before the same judge. ”

When the appeal came up for hearing on 08/02/2011, the registrar informed the court that the parties were served with hearing notices on 01/02/2011 against that day’s proceedings. Surprisingly, both parties and their counsel were absent from the court.

Incidentally, both parties had filed their briefs of arguments in respect of the appeal. Hence the court, taking shelter under the provisions of Order 17 rule 9 (1) of the Court of Appeal Rules, 2007, treated the appeal “as having, been duly argued” and reserved it for judgment. Before I delve into the consideration of the main appeal, I will first attend to the preliminary objection filed by the respondent against it. The reason is a familiar one. It is trite law that once a preliminary objection is filed, it must be dispensed with first so as to know the destiny or fortune of the substantive appeal. If the objection yields fruit, when it is cul-de-sac for the appeal. Where it fails, the appeal will be taken on its merits. Moreover, when an objection is raised’ as herein, issue of’ jurisdiction of court is in contention’ There are loads of decided authorities that stand by me on this point, see Adelekon v. ECU-Line NV (2006) 12 NWLR (Pt. 993)33; Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt.1035); Odedo v. INEC (2008)17 NWLR (Pt.1117) 554: B.A.S.F. (Nig.) Ltd. v. Faith Ent. Ltd. (2010) 4 NWLR (Pt. 1183) 103: Akpan v. Bolo (2010) 17 NWLR (Pt.1223) 421; FBN PLC V. T.S.A. Ind, Ltd. (2010) 15 NWLR (Pt.1216) 247; UBN V. Umeoduagu (2004) 13 NWLR (Pt.890)352;

on the premise of this position of the law, I will kick-off with the examination of the respondent’s preliminary objection. The respondent’s notice of preliminary objection, filed on 08/02/2005, inclusive of the ground, reads:

“TAKE NOTICE that the respondent will at the hearing of this appeal raise objection and challenge the competence of grounds No. A, B and C of the Appellant’s Grounds of Appeal, argued in its brief of Argument as being incompetent as the grounds do not flow from the decision of the lower court appealed against.

FURTHER TAKE NOTICE that the Respondent will be challenging the issues framed by the appellant numbered 2.1: 2.2 and 2.3 on page 3 of the Appellant’s Brief of Argument as being incompetent not flowing the decision of the lower Court.