International Bank for West Africa (Now Afribank Nigeria Plc) V. Fola Sasegbon (2007)

LawGlobal-Hub Lead Judgment Report

GALINJE, J.C.A.

This is an appeal against the ruling of the Lagos High Court presided over by Abiru, J. which was delivered on the 16th June, 2005, in which the learned trial Judge dismissed the preliminary objection dated 22nd November, 2004 and filed by the appellant against the issuance and service of Form 48 on it.

The respondent herein, as claimant at the lower court commenced an action by writ of summons dated 27th of February, 1981, against several parties, among who is the appellant, who was the 4th defendant. Parties filed and exchanged pleadings. Thereafter all the parties in that suit, executed a terms of settlement which was subsequently made the judgment of the court dated 1st August, 1983.

After the consent judgment aforesaid, the respondent alleged that the appellant herein refused to comply with the consent judgment and therefore commenced contempt proceedings against it by causing the registrar of the lower court to issue Form 48 which is notice of consequences of disobedience of the order of court dated 8th of December, 2003, for service on the appellant and its legal adviser who is also its secretary. The notice was accordingly served on the appellant. In reaction to the service aforesaid, the respondent filed a notice of preliminary objection dated 22nd January, 2004, in which he prayed that the Form 48 notice be set aside, dismissed or struck out. The grounds upon which the appellant’s prayer was predicated are:-

“1. The service of the process was (sic) not properly affected:

2. The claimant did not comply with the provisions of the Sheriff and Civil Process Act on the enforcement of judgment:
3. The entire proceedings taken herein by the claimant is an abuse of court process; and
4. The court has no jurisdiction to entertain the proceedings.”

The learned trial Judge heard the preliminary objection and in a considered ruling delivered on the 16th of June, 2005, same was dismissed and the committal proceeding was adjourned for hearing. It is against this ruling that the appellant has brought this appeal. The notice of appeal dated 21st June, 2005, contains seven grounds of appeal. This notice of appeal is at pages 220 – 230 of the record of this appeal.

In line with the relevant rules of this court parties filed and exchanged briefs of argument the appellant’s brief dated 11th April, 2006 and filed on 12th April, 2006, four issues have been distilled from the seven grounds of appeal. These issues read as follows:-

“(i) Whether the learned trial Judge was right to have discountenanced the address of counsel on the issue of abuse of court process since facts about the abuse of court process were not disposed to in the affidavit supporting the preliminary objection;

(ii) Whether the learned trial Judge was right in holding that the service of the notice on the fourth defendant was in accordance with the rules of court and therefore proper;

(iii) Whether the learned trial Judge was right in putting the onus on the appellant to convince the court that he was not personally served thereby shifting the burden of proof from the respondent to the appellant;

(iv) Whether the language of the Honourable court was fair to the appellant in the circumstances thereby making the appellant’s complaint of bias by the court untenable.”

Mr. Olutayo Omole, learned counsel for the respondent, on the 30th May, 2006, filed the respondent’s brief of argument. In the brief, he incorporated a preliminary objection to the competence of the appeal. Learned counsel also formulated three issues for determination of the appeal in case his preliminary objection fails. These issues also read as follows:-

“3.1 Despite the appellant’s written address, was the learned trial Judge justified in not holding that the issue and service of Form 48 on the appellants constituted an abuse of process of court?

3.2 Whether the learned trial Judge rightly held that the appellants were validly served with Form 48 in this suit.