Miss. Lucia Taiwo Adeyemi & Ors V. V. O. Achimu/ndic/assurance Bank Limited & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the Ruling of the Federal High Court sitting at Kano delivered on 25th May, 2007 wherein the learned judge, Hon. Justice Adamu Bello refused to set aside the judgment of the Failed Banks Tribunal delivered on 20th day of April, 1999 for want of jurisdiction.

The appellants herein are the children of one Michael Babatunde Adeyemi (now deceased) who was the 2nd Judgment Debtor in suit No. FBT/11/KNZ/CV/22/98 before the Failed Banks Tribunal holden at Kano whose property located at No. 253, Muri Okunola Street, Victoria Island Lagos was used by one Temple & Golders Ltd., a customer of the defunct Assurance Bank to secure some credit facilities from that Bank and some other banks which facilities were not settled or fully paid up to the time the Failed Banks (Recovery of Debts) and Financial Malpractices in banks Decree No. 18 of 1994 was promulgated.

The 1st Respondent in this appeal, V.O. Achimu/NDIC/Assurance Bank filed a claim before the Failed Banks.

Tribunal Kano Zone on 29/10/98 for the Recovery of the sum of N35, 724, 513.80 being the total indebtness of Temple & Golders Ltd., Michael Babatunde Adeyemi and Ade Babington Ashayaye as at 28th August, 1998. Although the suit, No. FBT/I/KNZ/CV/22/98 was initially struck out for absence of parties, it was later relisted and adjourned to 20th April, 1999 for hearing while it was ordered by the Tribunal inter alia;

“that the processes be served on the respondents by substituted means by sending through courier to Mrs. Fatima Abdul Azeez & Co. No. 10, Ondo Street (west) Ebute – Metta, Lagos to effect service by either pasting on the wall of their House or serving same on any member of the Household, and same shall be deemed proper service”.

The Tribunal gave default judgment on 20th April, 1999 after being satisfied that there had been due compliance with the order for service of the processes; and following the application of the claimant/applicant’s Counsel. The judgment was entered in favour of the applicant as per its claim and against the Respondents.

Following the promulgation of Decree No. 62 of 1999, the 1st Respondent V. O. Achimu/NDIC (Assurance Bank) applied to the Federal High Court, Kano in suit No. FHC/CS/100/1999 for the execution of the judgment of the Failed Banks Tribunal, but the 2nd Judgment debtor Mr. Adeyemi filed a motion on 30th December, 1999 for setting aside of the judgment of the Tribunal on ground of non service and followed same with an application for stay of execution of the judgment. The said 2nd Judgment Debtor/Applicant died on 25th February, 2003 and was substituted by other persons.

As a result of the refusal of the application for the order setting aside the Tribunal’s judgment by the Federal High Court, the Appellants who are the heirs to the estate of late Michael Babatunde Adeyemi sought and were granted leave by this Court as interested parties to appeal against that Ruling of the Federal High Court.

The Appellants’ Notice of Appeal was filed on 27/05/2011 which was amended by inclusion of other grounds of Appeal as in the Amended Notice of Appeal filed on 31/3/14 containing 13 grounds of Appeal.

In the Appellant’s Brief of Argument prepared by Akinlolu Kehinde, SAN and filed on 12/6/14, the following issues were formulated for determination of the appeal;

1. Whether from the facts and circumstances of this case the Federal High Court (the Trial Court) has not affirmed, the denial of the 2nd Defendant’s (late Michael Babatunde Adeyemi) right to fair hearing and thereby occasioning a miscarriage of justice.
2. Whether from the facts and circumstances of this case, the trial Court (Federal High Court) misconceived the 2nd defendant’s (late Michael Babatunde Adeyemi) case and by extension the Appellant’s case and thereby occasioned a miscarriage of justice.

The 1st respondent had, in the Brief of Argument filed on 25/6/14 and settled by S.J. Gani Haliru Yakubu incorporated the argument on a preliminary objection that this Court has no jurisdiction in respect of this appeal, and that the appeal is incompetent based on the Notice of Preliminary Objection earlier separately filed, and after arguing the preliminary objection on pages 2 – 8 of the Brief, thereafter formulated the following issues for determination;

1. Whether the Federal High Court was right by holding that from the record the then 2nd defendant was served with the processes of the Court thereby giving him fair hearing.
2. Whether the federal High Court was right by holding that the appellants did not file a defence to the claim but instead acknowledged the judgment and debt owed.

The settled position of the law is that where a preliminary objection is raised to the hearing of an appeal or any process, it is incumbent upon the court to determine such objection before proceeding further in the matter, and the obvious reason for this is that as in the instant case where the jurisdiction of the court is challenged the objection has the tendency to terminate the life of the suit, or appeal. See OKEREKE V. YAR’ADUA (2008) ALL FWLR (Pt.430) 626; SANI V. OKENE LG TRADITIONAL COUNCIL (2008) ALL FWLR (Pt. 429) 464; UDENWA v. UZODINMA (2012) 12 MJSC (Pt.111) 1.

The preliminary objection of the 1st respondent is that this court lacks the jurisdiction to hear this appeal and that the appeal itself is incompetent.