First Bank Of Nigeria Limited & Anor V. First City Monument Bank PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Ruling of the High Court of Lagos State in Suit No. LD/l477/2005 delivered by A. A. Phillips J. on the 20th June, 2008 in favour of the Respondent. Dissatisfied with the Ruling, the Appellants appealed via an Amended Notice of Appeal dated 29th January, 2016.

The Appellants’ brief of argument settled by F. B. Odesanya, Esq. of Odesanya & Co. is dated and filed the 29th February, 2016. The Appellants’ reply brief is dated 15th February 2016 but filed on 16th February, 2016, the Appellants formulated four issues for determination viz:-

ISSUES FOR DETERMINATION

1. Whether the learned trial Judge was right by not drawing a distinction between garnishee order absolute granted to merit as decided by the court in U.B.N. Plc v. Marcus Ind. Ltd (2005) 13 NWLR (Pt. 943) 654 and the garnishee order absolute granted in default of appearance and defence in this case thereby making the Court to be functus officio. (See ground 1 of the Amended Notice of Appeal dated 9th day of March, 2011)
2. Whether it is proper in law for the learned trial Judge to rely as conclusive proof of service the affidavit of service deposed by the litigation clerk of the Respondent despite the defect of not satisfying the requirements of Order 7 Rule 13 of the Lagos State High Court (Civil Procedure) Rules 2004 (see ground 2 of the Amended Notice of Appeal dated 9th day of March, 2011).
3. Whether the learned trial Judge was right in law not to have considered and ruled on all the issues raised by the 4th and 5th Garnishees/Appellants in their application dated 25th day of February, 2008 on the nature of garnishee proceedings. (See ground 3 of the Amended Notice of Appeal dated 9th day of March, 2011).
4. Whether the learned trial Judge was right to have held that the application of the 4th and 5th Garnishees to set aside the Garnishee order absolute granted in default of appearance by the trial Judge is an abuse of Court process in view of similar application filed at the Federal High Court Lagos Division where parties are different and the 4th & 5th Garnishee appeared as judgment debtors (See: ground 4 of the Amended Notice of Appeal dated 9th day of March, 2011)

The Respondent filed a Notice of Preliminary Objection dated 11th February, 2016 praying for the striking out of ground 4 of the Notice of Appeal filed and issue 4 distilled from the ground for being incompetent in so far as leave of this Court was not sought and obtained before including the ground to the Amended Notice of Appeal dated 29th January, 2016. Arguments in support of the Notice of Objection are set out at pages 4-7 of the Respondent’s brief of argument filed on 11th February,2016. With regard to the Appeal, the Respondent formulated the following issues for determination viz:-

ISSUES FOR DETERMINATION

5.01 Whether the Appellants were served with the Order Nisi on the 12th of October, 2006. (Ground 2)

5.02 Whether or not the reliance on the Supreme Court decision of Union Bank of Nigeria Plc v. Boney Marcus Industries Ltd. (2005) 13 NWLR (Ground 1)

5.03. Whether in the consideration of the Appellants’ Motion on Notice dated 25th February, 2008, the Appellants’ right to fair hearing was breached. (Ground 3)

5.04 Whether the Motion on Notice dated 25th February, 2008 is an abuse of Court process. (Ground 4)

I will at the outset treat the Preliminary Objection before moving on to the Appeal itself.

ARGUMENTS ON PRELIMINARY OBJECTION

Learned counsel for the Respondent in his opening argument on the Preliminary Objection, submitted that Ground 4 of the Amended Notice of Appeal is incompetent because the Appellants did not seek leave of Court before filing same. Counsel contended that the Appellants in their motion dated 27th January, 2016 only sought for an order of Court to amend their Notice of Appeal and Brief of Argument to reflect the new names of the Appellants. That the Original Notice of Appeal dated 11th July, 2008 which had three parties was amended to reflect one party in the subsequent Amended Notices of Appeal dated 4th October, 2010, 9th March, 2011 and 27th January, 2016 respectively but not to file and argue additional Ground of Appeal. Learned counsel submitted that the said Ground of Appeal as well as the issue arising therefrom are incompetent and urged this Court to strike it out. He cited Order 6 Rule 4 of the Court of Appeal Rules 2011. KWARA v. INNOCENT (2009) 1 NWLR (Pt. 1121) 179; TAHIR v. BANK OF THE NORTH LTD (2007) ALL FWLR (Pt. 388) 1072; INTEGRATED DATA SERVICES V. ADEWUNMI (2006) ALL FWLR (Pt. 292) 145; IBATO v. BARAKURO (2007) ALL FWLR (Pt. 371) 1669.

In his response to the Respondent’s Notice of Preliminary Objection, counsel for the Appellants in the reply brief submitted that the said ground 4 of the Amended Notice of Appeal is not based on an alien Ground or fresh issue on appeal which was not raised nor tried by the trial Court. That leave is only required for introduction of fresh issue on appeal. Counsel cited cases amongst them is the case of AWOTE v. OWODUNNI (1986) 12 SC 294; SPARKLING BREWERIE5 LTD v. UNION BANK (2001) 7 SC (Pt. 11) 146. He contended that the Appellants have complied with Order 6 Rule 4 of the Court of Appeal Rules 2011.