Keystone Bank Limited V. A. O. S. Practice (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment)

The present appeal is a fall-out of the ruling of the Lagos State High Court, Lagos Judicial Division, which was delivered on January 24, 2012 by the Hon. Justice A. A. Phillips, J (as the learned trial judge then was) in Suit No: LD/1179/2011. By the ruling in question, the court below granted the Respondent’s (Claimant’s) application seeking to substitute the Appellant for Bank PHB Plc (Defendant), and accordingly dismissed the Appellant’s preliminary objection.

Dissatisfied with the said ruling, the Appellant filed the Notice of Appeal thereof on 10/02/12 in the court below. The notice of appeal is predicated upon a total of three grounds, thereby praying the court to allow the appeal, set aside the order of the court substituting the Appellant for Bank PHB, and accordingly dismiss or strike out the Respondent’s application for substitution in question.

BACKGROUND FACTS:

The facts and circumstances surrounding the appeal are certainly not far-fetched. They are deducible from the records of appeal. On June 27, 2011, the Respondent filed the Suit (No: LD/1179/2011) in the court below vide a writ of summons along with a 14 paragraphed statement of claim, seeking various monetary and declaratory reliefs against Bank PHB Plc. The reliefs sought by the Respondent against the said Bank PHB Plc are to the following effect:

(i) The sum of N1,338,777,209.56 (One Billion, three hundred and thirty eight Million, Seven hundred and Seventy Seven thousand, two hundred and nine Naira, fifty six Kobo) being the professional fees for the legal services rendered by the Claimant to the Defendant at the request of the Defendant, the details of which are as pleaded in the statement of claim.

(ii) Interest on the said sum of N1,338,777,209.56 (One Billion three hundred and thirty eight Million, Seven hundred and Seventy seven thousand, two hundred and nine Naira, fifty six kobo) at the rate of 21% per annum till judgment is delivered and thereafter at the rate of 18% per annum till judgment sum is liquidated.

(iii) A declaration that the claimant has a lien on the sum of N3,779,730,126.34 kept with Access Bank Plc. In the name of Mareva injunction obtained by the claimant working as solicitors to the Defendant in Suit Nos: ID/38/2010 and ID/178/2010 until the Defendant pays the Claimant the sum of N1,338,777,209.56 (One Billion three hundred and thirty eight Million, Seven hundred and Seventy seven thousand, two hundred and nine Naira, fifty six Kobo) being its professional fees for the services rendered to the Defendant.

(iv) Cost of this action as assessed at N75,000,000.00 (Seventy five, Million Naira) only.

However on 07/10/11, the Respondent deemed it expedient to file a motion on notice seeking the following reliefs:

1. AN ORDER of this Honourable Court for leave to substitute the name Keystone Bank Limited for Bank PHB sued in this action as Defendant.
2. AN ORDER of Court deeming all processes filed with the Defendant’s name as Bank PHB Plc as being properly filed against Keystone Bank Plc.
3. AN ORDER of Court directing parties in this Suit to reflect Keystone Bank Limited as the Defendant in the subsequent processes to be filed by parties.

The application was supported by a 9 paragraphed affidavit and a further affidavit. On 18/10/11, the Appellant filed in the court below a notice of preliminary objection as a reaction to the Respondent’s application in question. The notice of preliminary objection is to the following effect:

1. AN ORDER of this Honourable Court striking out the Motion on Notice of the Claimant/Respondent dated 7th October 2011 and the affidavit deposed to by Rasheed Lawal on 7th October 2011 in support of the said Motion on Notice of the Claimant/Respondent dated 7th October 2011 seeking the leave of this Honourable Court to substitute the name Keystone Bank Limited for Bank PHB the Defendant herein on the grounds that the affidavit in support of the said motion offends the provisions of the Evidence Act 2011.

The preliminary objection is predicated upon four grounds, viz:-

(i) The affidavit in support of the said motion on Notice deposed to on 7th October 2011 by Rasheed Lawal violates the provisions of the Evidence Act 2011 in respect of the contents of affidavits.

(ii) The deponent of the said affidavit has not deposed to facts from his personal knowledge neither did he set forth the source of his belief and the particulars of the source of his information.