Makoshi Daniel V. Senator (Dr) Alex Kadiri & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment)

This is an Appeal against the Judgment of the High Court of the Federal Capital Territory Abuja in Suit No: FCT/HC/CV/755/2001- Senator (Dr) Alex Usman Kadiri vs. Societe Generale Bank Nigeria Ltd.

Briefly, the facts of the case are that the 1st Respondent was the owner of two bungalows on Plot No: 2617, Maitama, Abuja and same was covered by a Certificate of Occupancy No: FCT/ABU/BN/264. He applied and obtained a loan from the 2nd Respondent. As security for the loan, he mortgaged one of the bungalows by depositing the Certificate of Occupancy in respect of the Plot with the 2nd Respondent. Being unable to repay the loan and the accrued interests, and in exercise of its powers under the Mortgage Agreement, the 2nd Respondent on the orders of the High Court of Justice Abuja, auctioned the mortgaged bungalow to the Appellant in 1998.

In 2001, the 1st Respondent commenced this suit as Plaintiff against the 2nd Respondent as Defendant. The Appellant was not a party and was not aware of the existence of the suit. At the end of the trial, Judgment was entered in favour of the 1st Respondent and against the 2nd Respondent. The 2nd Respondent later brought an application on notice before the lower Court in which he asked for an order that the Appellant should hand over the Certificate of Occupancy in question to the 1st Respondent.

The said application even though on Notice, the Appellant stated that he was not served with same. The lower Court granted the application.

However, in January 2003, the Appellant was by substituted means served with Form 49 by pasting same on his residential house in Maitama, Abuja.

The said Form 49 was accompanied with the following Exhibits:-

1. A copy of Certificate of Judgment.
2. Copy of Order of Court dated 6th October, 2003 against the Appellant.
3. Motion Ex-parte for substituted service.
4. Copy of the Court’s Order for substituted service of the said Form 49.

After the service of Form 49 the Appellant brought an application on notice where he prayed amongst others to set aside the order made against him without notice and strike out his name from the suit. After hearing the application, the lower Court held that the Appellant is a privy to the 2nd Respondent and that he is bound by the order made after the Judgment against him. The application was therefore dismissed.

The Appellant dissatisfied with the Ruling now appealed to this Court.

The learned Counsel for the Appellant formulated three issues for determination set out as follows:-

“(1) Whether the Court’s Order against the Appellant in this case is not in breach of the Appellant’s constitutional right to fair hearing.

(2) Whether the trial Court was right to suo motu raise an issue before it.

(3) Whether the decision in the case of Osunrinde vs. Ajamogun (1992) 6 NWLR Part 246 Page 156 applies to this case.”

The learned Counsel for the 1st Respondent also formulated a lone issue for determination set out as follows:-