Mbas Motel Limited V. Wema Bank Plc. (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of the High Court of Kano State in Suit No K/130/2006 contained in the Ruling delivered by Honorable Justice A. T. Badamasi on the 9th of October, 2006. By the consent of the parties, the lower Court, on the 24th of April, 2006, entered judgment in favour of the Respondent in the sum of N3,520,790.00 together with interest at the rate of 19% from 9th of Match, 2006 till date of judgment and thereafter at the rate of 10% until final liquidation. The Appellant willingly submitted to judgment.

On the 15th of May, 2006, the Appellant filed an application dated the 13th of May, 2006 before the lower Court praying for an order allowing it to liquidate the judgment sum in installments of N500,000.00 down payment and monthly sums of N100,000.00. The Respondent opposed the application and the lower Court took arguments thereon. In a considered Ruling delivered on the 15th of June, 2006, the lower Court granted the application but not in the terms sought by the Appellant. The lower Court directed the Appellant to make a down payment of N750,000.00 and monthly installments of N150,000.00 towards liquidating the judgment debt.

The Appellant was not satisfied and on the 19th of June, 2006, it filed another application before the lower court asking for a variation of the order contained in the Ruling of the 15th of June 2006 to read that it should liquidate the judgment sum by making a N500,000.00 down payment and monthly installment sums of N100,000.00. In reaction to the application, the Respondent filed an application dated the 21st of June, 2006 praying for an order striking out the application of the Appellant dated 19th of June, 2006 on the ground that the lower Court lacked jurisdiction to entertain the application and that the application was an abuse of process and also for an order rescinding the order on installmental payments made on the 15th of June, 2006 and giving the Respondent liberty to proceed against the assets of the Appellant in liquidation of the judgment debt.

The lower Court heard the application of the Respondent first and in a considered Ruling delivered on the 9th of October, 2006, the lower court upheld the contention of the Respondent and it struck out the application of the Appellant dated the 19th of June, 2006 as incompetent. The Appellant was dissatisfied with the decision and it caused a notice of appeal dated the 10th of October, 2006 to be filed against it. The notice of appeal contained one ground of appeal.

In compliance with the Rules of this court, the Appellant filed a brief of arguments dated the 8th of October, 2007 and it consisted of eleven pages. The Respondent filed a brief of arguments consisting of nine pages and dated the 28th of November, 2008 in response but the brief of arguments was deemed proper on the 26th of May, 2010. At the hearing of the appeal on the 4th of February, 2013, counsel to the Appellant and to the Respondent relied on and adopted their respective briefs of arguments.

In his brief of arguments, counsel to the Appellant distilled one issue for determination and this was:

Whether the learned trial Judge without hearing the Appellant’s motion on notice dated the 19th of June, 2006 was right in striking it out as being incompetent?

This issue was adopted by the Counsel to the Respondent in his brief of argument as sufficient to determine this appeal.

In arguing the issue, Counsel to the Appellant submitted that every court of law has an inherent power and/or jurisdiction to entertain all applications pending before it and that such power and/or jurisdiction can only be removed by express words.

Counsel stated that one of the twin cardinal principles of fair hearing and of the administration of justice is that a party must be heard before his fate is determined and he submitted therefrom that it would amount to unfair hearing to ignore, pronounce on or determine an application before a court without a hearing. Counsel submitted that a motion, however stupid and even if it is an abuse of the judicial process, must be heard and determined one way or the other by a trial judge and that it cannot therefore be a judicial and judicious exercise of discretion to deny an applicant the right to move his motion for whatever reason. Counsel referred to the case of Okoro vs. Okoro (1998) 3 NWLR (Pt.540) 65.

Counsel submitted further that the order of instalmental payments made by the lower Court on the 15th of June, 2006 was an ancillary order which can be made, rescinded, or varied at any time after judgment upon certain principles and that it was not a final order that rendered the lower Court funtus officio the subsequent application of the Appellant dated the 19th of June, 2006. Counsel referred to the provisions of Order 40 Rule 8 of the High Court of Kano State (Civil Procedure) Rules and submitted that the lower Court had power to entertain the application of the Appellant dated the 19th of June, 2006 and this was more so as the terms of the order of instalmental payments sought on the application was different from the order granted by the lower Court on the 15th of June, 2006. Counsel referred to the case of Ukachukwu vs Uba (2006) All FWLR (Pt 300) 1736, amongst others. Counsel submitted that the application of the Appellant dated the 19th of June, 2006 was thus not incompetent and that the decision of the lower Court striking out the application lacked any legal basis.

In response, counsel to the Respondent stated that the learned trial Judge found in the Ruling that the application of 19th of June, 2006 was similar in content to the earlier application for instalmental payments determined in the ruling of 15th of June, 2006 and the lower Court held that it had no power to re-open the exact same issue it had decided earlier. Counsel submitted that the position taken by the lower Court was infallible in the circumstances and he referred to the case Chieshe Vs Nicon Hotel Ltd (2007) All FWLR (Pt 388) 1152. Counsel stated that the application of 19th of June, 2006 was a clear case of abuse of process and he referred to the case of Uba Vs Ukachukwu (2006) All FWLR (Pt.337) 515.

Counsel stated that reference to the concept of fair hearing by Counsel to the Appellant was completely inappropriate in the circumstances as the Appellant was fully heard before the lower court gave its ruling of the 15th of June, 2006. Counsel also stated that the submission of Counsel to the Appellant that a court was duty bound to hear all applications however stupid was misconceived as the court only had a duty to hear applications commenced by due process of law and not one commenced as an abuse of court process. Counsel further submitted that the Counsel to the Appellant obviously did not appreciate the meaning of the wordings of Order 40 Rule 8 of the High Court of Kano (Civil Procedure) Rules because the provisions talk of recission of an order of instalmental payment and not variation and the application of the 19th of June, 2006 cannot be subsumed under the provisions.