First Bank Of Nigeria Plc V. Government Of Ondo State & Ors. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment)

In suit No. AK/278/2003 filed in the High Court of Ondo State, Akure Judicial Division, the 1st and 2nd respondents were the plaintiffs. The defendants in the Court below were: 1. BIBSON ASSOCIATES LIMITED, 2. NATIONAL BANK OF NIGERIA LIMITED and 3. FIRST BANK OF NIGERIA PLC

The 1st and 2nd respondents sought 9 (nine) principal prayers as endorsed in the writ of summons taken out by them (pages 110-112 of the supplementary record of appeal).

By a motion ex parte dated the 7th day of August, 2003 and filed on the same day, the first and second respondents, sought the following relief:

(1) An order of interim injunction restraining the second defendant/respondent from paying any sums of money out the first plaintiffs/applicant’s account with it or honoring any demand from the first and third respondents or their agents from the said account in pursuance of the irrevocable bank guarantee dated 29th July, 2002 pending the determination of the motion of Notice.

(2) An order of Interim Injunction restraining the second Defendant/Respondent from issuing, clearing and/or giving effects to any cheque, draft or any negotiable instrument made by the first and third defendants/respondents or their agents or assigns on the account maintained by the first plaintiff/applicant with the second defendant/respondent pursuant to the said irrevocable bank guarantee, pending the determination of the motion on Notice.

And for such other or further orders that this honourable court may deem fit to make in the circumstance.”

The motion ex parte was heard and granted on the 7th day of August, 2003 by Komolafe, J.

The appellant, was not satisfied with the decision of the lower court and filed a notice of appeal containing four (4) grounds pages 33 to 36 of the record).

PRELIMINARY OBJECTION

The 3rd respondent raised and argued a preliminary objection in its undated brief of argument filed on the 12th day of September, 2005 but deemed properly filed and served on the 27th day of September 2006. The preliminary objection was moved before the hearing of the appeal. The 3rd respondent’s preliminary objection to the competence of the appeal is premised on the grounds that there was no service of the notice of appeal on the 3rd respondent and that the notice of appeal was filed outside the period of 7 (seven) days granted for its filing by the court on the 12th day of January, 2004. The preliminary objection is argued from paragraph 3 at pages 3 to 5 of the 3rd respondent’s brief.

The appellant’s reply to the 3rd respondent’s preliminary objection is at page 3 of its reply brief dated 27th of October, 2006 and filed on the 7th day of November, 2006 but deemed filed on the 22nd of March , 2007

I have read the submissions for and against the 3rd respondent’s preliminary objection. I have also read the legal authorities cited by the 3rd respondent and the appellant respectively. I agree with the appellant that the 3rd respondent, which has participated fully in this appeal including filing its brief of argument, cannot be heard on the ground that it was not served personally with the notice of appeal. The 3rd respondent is deemed to have waived its right to personal service, if indeed it was not served personally, having regard to the circumstances of this case.

In any case, I am satisfied that the notice of appeal was indeed communicated to the 3rd respondent and its objection is disallowed under Order 2 Rule 6 of the Court of Appeal Rules, 2007 (applicable to this case).