Mr. Adolphus K. Attiogbey V. United Bank For Africa Plc & Ors (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 judgment of the High Court of Kaduna State in Suit No KDH/KAD/546/93 delivered by Honorable Justice J. Abiriyi (as he then was) on the 23rd of January, 2004. By a writ of summons filed on the 1st of November, 1993, the Appellant, as plaintiff, commenced an action in the High Court of Kaduna State in Suit No KDH/KAD/546/93 against the first and second Respondents, as first and second defendants, and he prayed for:

i. A declaration that the first Defendant Bank is in breach of contract by charging interests of more than 12% per annum on the loan/overdraft of N20,000.00 granted to the plaintiff, as any higher rate of interest has not only imposed a non-contractual burden on the Plaintiff and has brought about plaintiff’s consequential inability to liquidate the aforesaid loan inspite of repayments of more than double the principal loan/overdraft facility originally enjoyed by the plaintiff but has also fallen outside the terms and conditions (for the grant of the loan) concerning which the first Defendant had reserved the right to cancel or reverse.

ii. An order of Court suspending the charging of interest (whether compound or simple) on the aforesaid loan taken by the Plaintiff pending the determination of Plaintiff’s first claim above together with a perpetual injunction restraining the first Defendant from further charging any interest on the said loan pending the reconciliation of the proper accounts and further restraining the Defendants from any sale or disposal of Plaintiff’s property at Plot B.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No.00757.

The writ of summons was accompanied by a motion ex parte dated and filed on the 1st of November, 1993 wherein the Appellant prayed for an order of prohibitive interim injunction restraining the first and second Respondents from carrying out the sale or threatened sale on 3rd of November, 1993 of the Appellant’s landed property located at and known as Plot 8.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No.007571 whether by public auction or private treat pending the hearing of the motion on notice for interlocutory injunction. The Appellant also filed a motion on notice for interlocutory injunction dated 1st of November, 1993. On the 2nd of November, 1993, the lower Court heard the motion ex parte for interim injunction and granted the application as prayed.

When the matter came up on the 19th of January, 1994, the Appellant and his Counsel were absent from Court and the lower Court, on the application of Counsel to the first and second Respondents, as Counsel to the first and second defendants, struck out the motion on notice for interlocutory injunction and discharged the order of interim injunction. On the 31st of January, 1994, the first and second Respondents sold the landed property of the Appellant at Plot B.20 Unguwar Rimi, Kaduna covered by Certificate of Occupancy No. 007571 to the third Respondent by public auction. By a motion on notice dated the 29th of July, 1994, the third Respondent applied to be joined as the third defendant in the action and the motion was granted by the lower Court on the 10th of October, 1994. The lower Court ordered the parties to file pleadings and the matter was fixed for hearing on the 1st of February, 1995.

Pleadings were filed and the third Respondent filed a counterclaim against the Appellant praying for the sum of N75,000.00 per annum as rents for the continued occupation of the property at Plot B.20 Unguwar Rimi, Kaduna from the 31st day of January, 1994 till date of judgment and interest at the rate of 22% per annum compoundable monthly. Trial in the matter did not progress much and it was severally adjourned due largely to the antics of the Appellant and his Counsel and in fact the lower Court struck out and relisted the case of the Appellant on a number of occasions. This was the position of the matter until the learned trial Judge before whom the matter was, Honorable Justice Donli, transferred her services from the Kaduna State Judiciary.

The matter was then transferred to Honorable Justice J. S. Abriyi and it came up for mention in that Court on the 6th of April, 2001. The matter was set down for hearing de novo. The matter again suffered several adjournments at the instance of the Appellant and on the 22nd of July, 2002, the lower Court dismissed the case of the Appellant for want of diligent prosecution and it set the counterclaim of the third Respondent down for hearing. The Appellant filed a motion on notice dated the 26th of August, 2002 praying the lower Court to set aside the order dismissing his case. The Lower Court took arguments on the motion and in a considered ruling delivered on the 15th of October, 2002, it dismissed the application.

On the 16th of June, 2003, the third Respondent amended his counterclaim to include a claim for possession of the property at Plot B.20 Unguwar Rimi, Kaduna from the Appellant. The counterclaim went to trial and the lower Court entered judgment on the counterclaim on the 23rd of January, 2004. The lower court refused the claim for rents but awarded damages in the sum of N100,000.00 in favour of the third Respondent.

The Appellant was dissatisfied with the judgment of lower Court and he filed a notice of appeal dated the 29th of January, 2004 against the judgment. The notice of appeal consisted of four grounds of appeal. The records of appeal were compiled and transmitted to this Court on the 27th of September, 2005. By a motion on notice dated the 27th of February, 2006 but filed on the 28th of February, 2006, the Appellant sought from this Court the following orders:

i. An order enlarging time within which the Appellant shall appeal against the judgment of the Kaduna State High Court delivered on 23rd of January, 2004 in Suit No.KDH/KAD/546/93.

ii. An order enlarging time within which the Appellant shall seek leave to appeal against the interlocutory rulings/decisions of the Kaduna State High Court delivered on 22nd of July, 2002 and 15th of October 2002 in Suit No.KDH/KAD/546/93.

iii. An order granting the Appellant leave to appeal against the rulings/decisions of the Kaduna State High Court delivered on 22nd of July, 2002 and 15th of October, 2002 in Suit No KDH/KAD/546/93.

iv. An order granting the Appellant enlargement of time to file Notice of Appeal against the rulings/decisions of the Kaduna State High Court delivered on 22nd of July, 2002 and 15th of October, 2002 in Suit No.KDH/KAD/546/93.