Mainstreet Bank Ltd. V. Eddy Motors Nigeria Ltd. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A. (Delivering the Lead Ruling)

The party before the court which has described itself as appellant/applicant (but which will hereafter be simply referred to “the applicant”) brought the instant motion dated 21/3/2012 and filed on the same date, under Order 7 Rules 1, 8 & 11 of the Court of Appeal Rules 2011; Section (sic) 6(6)(b) and 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended); Section 64 of the Evidence Act, 2011 ; and under the Inherent Jurisdiction of the Court of Appeal. The reliefs which the Applicant seeks in the motion (supra) as set out therein are:-

“(1) AN ORDER setting aside the entire proceedings in Appeal No.CA/E/234M/98 dated 30th day of September, 2002 – “the oral withdrawal of the said appeal (duly entered on 25th day of November 1998): and the dismissal of same, with a cost of N1000, by the Court of Appeal.

(2) AN ORDER restoring Appeal No.CA/E/234/93 on the cause list of the Honourable Court of Appeal, to be dealt with on the merit.

(3) AN ORDER nullifying all acts done regarding the ‘RES’ in, Suit No.O/704/97 Appeal No.CA/E/234/98 (that is); the purported Sale/Execution of property belonging to the Appellant/Applicant in the hands of the Respondent, which was held as security for bank overdraft the subject matter in Appeal No.CA/E/234/98; arising from Suit No.O/704/97.

(4) AN ORDER directing that the Appellant/Applicant be forthwith reinstated/put in immediate possession or occupancy of the said property/assets.

(5) AN ORDER directing the Deputy Chief Registrar of the Court of Appeal, Enugu to take step by writing to the Nigeria Police Force, to wit: Commissioner of Police, Nigerian (sic) Police Force, Enugu Police Command; to enforce the directing Order relief (4) above:”

The grounds of the application as set out in the motion (supra) are: –

“A. The judgment of the Court of Appeal in appeal No.CA/E/234/98 dated the 30th day of September, 2002 is a NULLITY. Specific particulars.

(i) The Appellant’s Notice of Appeal in Suit No.O/704/97 dated and filed on 10/7/98 was prepared and signed by Appellant’s Legal representative one Chief J. N. EJIKEME of Counsel PP: Chief J. N. EJIKEME & Co (Enujeke Chambers) 9, Ozala Road, Onitsha.

See: EXHIBIT ‘A’ attached.

(ii) The Appellant’s legal representative in Suit No.O/704/97 that settled and prepared the Notice of Appeal is Chief J. N. EJIKEME of Counsel, and the Appellant never changed its Counsel to one MISS ECHETEBU ESQ., who appeared on the proceeding dated 30/9/2002, purportedly acting on behalf of the Appellant, and erroneous, misrepresenting the Appellant, by an oral application made to the Court of Appeal withdrawing the appeal.

See: EXHIBIT ‘B’; Certified True Copy of the proceeding in Appeal No.CA/E/234/98, dated 30/9/2002.

(iii) Both the Civil FORM 8 (Certificate of Service of Notice of Appeal on AFRIBANK NIGERIA PLC, the Respondent); and the CIVIL FORM 9 (the certification that the Appellant duly and punctually complied with the conditions of appeal imposed) were issued on 12/11/98.