Mainstreet Bank Limited V. Alhaji Bello Isa Bayero (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment)

By a writ of summons and statement of claim the respondent (as plaintiff) instituted suit No. K/201/2004 at the High Court of Justice, Kano state (the lower Court) seeking the following reliefs:

“1. A declaration that the retention or non-release of the plaintiff?s Certificate of Occupancy No. LKN 6430 (RES/RC/53/1795) by the defendant after the liquidation of the plaintiff’s indebtedness to it with respect to Current Account No. 363000767G is illegal and unlawful.

2. A directive of Court ordering the defendant to release to the plaintiff the Certificate of Occupancy No. LKN 6430 (RES/RC/531795), forthwith.
3. N500,000.00 general damages for illegal and unlawful retention of the Certificate of Occupancy No. LKN 6430 (RES/RC/531795).
4. Cost of this action”‘

The writ of summons together with the statement of claim was served on the appellant (then defendant). The appellant failed and or neglected to enter appearance nor did he file statement of defence within the prescribed period. After several adjournments by the Court, learned counsel for the respondent brought an

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application for an order to enter judgment in default in his favour. On the 19th of May, 2005, the lower Court entered judgment in favour of the respondent, granting all the reliefs sought. The appellant was dissatisfied with the default judgment, hence his application for an order to set it aside, which was refused and dismissed on the 13th of December, 2005. Peeved and piqued by the dismissal of the application to set aside the default judgment, the appellant filed Notice and grounds of appeal to this Court on the 13th of December, 2015, which was amended and filed on 11th of June, 2014.

The appellant’s brief of argument was filed on the 11th of June, 2014. The respondent did not file brief of argument. The appellant’s application to hear the appeal on his brief of argument was granted on the 16th of April, 2015. The appeal was argued on the 22nd of March, 2016 whereat learned counsel to the appellant adopted the appellant’s brief of argument, urged the Court to allow the appeal, set aside the judgment of the lower Court, and to remit the case to the lower court for hearing de novo. Five issues have been distilled from the Notice and grounds of appeal

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for the determination of the Court, which are thus:

“1. Whether the learned trial Judge was right not to have considered all the factors enunciated in Williams and Anor v. Hope Rise Voluntary Society (182) 1 AA NLR 7 and Mohammed v. Husseini (1998) 12 SCNJ 1 before coming to his decision.

2. Whether there was a competent writ of Summons/Statement of claim before the trial Court.
3. Whether there was proper service and endorsement of writ of summons/statement of claim on the appellant?
4. Whether the general damages of N500,000.00 and cost of N50,000.00 awarded against the appellant is not excessive in the circumstances of this case.

5.Whether the Appellant was not denied its right of fair hearing in the circumstances of this case.”

In the determination of the appeal, the issues contained in the appellant?s brief of argument would be resolved in this Order 2 and 3, 1,4, and 5.

On issues 2 and 3 Adi Esq., submitted that the writ of summons and the statement of claim initiating suit No. K/201/04 before the lower Court are incompetent in law having not been signed by a legal practitioner. That Z. M. Umar & Co. is not

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