Framan Enterprises Limited & Anor V. Spring Bank Plc & Ors (2016)

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TIJJANI ABUBAKAR, J.C.A. 

 This appeal is against the Ruling of Olateru-Olagbegi J. of the High Court of Lagos State delivered on the 15th day of September 2009 in suit No. LD/M/609/06.

The Ruling arose from an application by the Defendants (Now Appellants in this appeal) praying the lower Court to set aside its judgment delivered on the 1st day of November 2007. The suit at the lower Court was commenced by the Claimant (1st Respondent in this appeal) by an Originating Summons. When the matter came up for hearing on the 1st day of November 2007 the Claimant (1st Respondent herein) moved the lower Court to enter judgment in their favour pursuant to Order 25 Rule 6 of the High Court of Lagos State (Civil Procedure) Rules 2004 in the absence of the Defendants (Now Appellants). The Learned Counsel for the 1st Claimant at the Court below (1st Respondent herein) informed the Court that he notified the Defendants (Now Appellants) of the hearing date. The lower Court dismissed the Application to set aside, thereby refusing to set aside its judgment and held that the Applicants (Appellants) had the opportunity to be heard but failed to take advantage of the opportunity offered by the Court.

The Appellants therefore became dissatisfied by the ruling of the lower Court refusing to set aside its judgment and approached this Court by Amended Notice of Appeal filed on the 8th day of March 2016 containing four grounds of appeal. The Appellants’ Amended brief of argument was filed on 8th day of March 2016. The Appellant also filed Reply Brief on the 24th day of March 2016, both briefs were filed by learned Counsel B. C. Igwilo.

Learned Senior Counsel Sylva Ogwemoh SAN filed the Respondents’ Brief of Argument on the 17th day of March 2016.

In the Appellants brief of argument, learned Counsel nominated three issues for determination, the issues are as follows:

1. Whether the findings of the learned trial Judge as cited at Ground One of the Notice of Appeal did not entirely miss the mark with regard to Order 25 Rule 6 of Lagos State (Civil Procedure) Rules 2004 under which the learned Judge entered its ruling in issue.

2. Whether the learned Judge was right in its view that the letter of counsel for the claimant constituted a legal hearing notice to the Defendants/Applicants of a schedule of hearing the matter or proceeding with the Pre-Trial Conference which was sufficient to make the non-appearance of the Defendants/Applicants on the said date 1/11/07 an unpardonable offence for which they must be punished with an irreversible judgment against them having regard to all the circumstances of the matter and the provision of the said Order 25 Rule 6 of Lagos State Civil Procedure Rule 2004.

3. Whether the said ruling of 01/7/07 was altogether a nullity and therefore ought to have been set aside because the pre-trial conference proceeding in which it was made was inapplicable to the originating summons procedure under which the matter was commenced.

The Respondent on the other hand submitted a sole issue for determination also reproduced as follows:

Whether based on the facts and materials contained in the Affidavits of the Appellants attached to the application dated 7th November 2007, to set aside the judgment of the lower Court dated 7th November, 2007, the learned trial Judge rightly exercised his discretion in refusing to grant the application of the Applicants, Grounds 1, 3 and 4 of the Appellants’ Amended Notice of Appeal dated 8th March, 2016.

The Respondents filed a notice of preliminary objection challenging the competence of Appellants appeal. The law is well settled that where preliminary objection is filed challenging the competence of an appeal, the objection must be heard and determined before the substantive appeal is determined. See: APC & ORS v. RE: C.P.C. & ORS (2014) LPELR-24036 (SC), ADEYEMI & ORS v. V. O. ACHIMU/NDIC/ASSURANCE BANK LTD & ORS (2015) LPELR-24379 (CA) and IKUEPKEN v. STATE (2015) LPELR-24611(SC) 52. I will therefore proceed to determine the preliminary objection first.

PRELIMINARY OBJECTION

Learned counsel for the Respondent raised preliminary objection in the Respondent’s brief, the objection is predicated on two grounds, the grounds are as follows: