Mr. Osa Osunde V. Ecobank Nigeria Plc (2016)

LawGlobal-Hub Lead Judgment Report

CHINWE EUGENIA IYIZOBA, J.C.A.

This is on interlocutory Appeal against the Ruling of the High Court of Lagos State delivered on the 19th day of October 2010. The Respondent herein as Claimant instituted an action in the High Court of Lagos State, Lagos Judicial Division against the Appellant as defendant on 20/01/10 claiming as follows:
i. The sum of N1,223,503,001.69 (One Billion Two Hundred and Twenty Three Million, Five Hundred and Three Thousand One Naira and Sixty Nine Kobo) being amount outstanding as at 30th November 2009 on the facility the sum of N1,000,000,000.00 granted to the Appellant?s company.
ii. Interest on the said sum of N1,223,503,001.69 at the agreed rate of 17% per annum till judgment is delivered and thereafter a post judgment interest rate of 10% per annum until the final liquidation of the judgment debt by the Defendant.
iii. The guaranteed costs of instituting and prosecuting this action, as assessed by the Respondent in the sum of N10 Million against the Appellant.
?
Upon being served with the Respondent’s Writ of Summons, Statement of Claim, list of witnesses, witness

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depositions, exhibits and Motion on Notice for Summary Judgment, the Appellant, instead of filing his Statement of Defence, depositions of his witnesses exhibits to be used in his defence and a written brief in reply to the application for summary judgment as required by Order 11 Rule (4) (4) of the Lagos State High Court (Civil Procedure) Rules filed a Notice of Preliminary Objection dated 27/04/10 challenging the jurisdiction of the Court to hear the suit and sought an order striking out the suit. On the expiration of 42 days within which the appellant was to file his statement of defence, if any, the Respondent on 14/05/10 applied for the issuance of Pre-Hearing Notices and upon approval by the Court complete pre-hearing Information Sheet providing answers to the questions therein. On 21/05/10 the Appellant completed prehearing Information Sheet and provided answers to the questions therein. On 19/10/10 when the case come up for hearing, the proceedings of the court ran thus:
“Parties absent.
S. O. Ogunyemi appears for the Claimant.
E. Odeh appears for the Defendant.
Ogunyemi: We have filed pre-trial conference forms and the Defendant

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has filed answers to Them. I have an application for summary judgment dated 10/01/2010. The Defendant has filed a preliminary objection to this suit dated 27/04/10. We have responded to the Defendants application. About 30 or 40 minutes ago this morning the Defendant served me his reply to our own response.
I pray the Court to take both applications and deliver a single ruling.
Odeh: I am of the view that the matter be set down for pretrial conference.
Court: The purpose of the Rules of this Court is well stated in Order 1 Rule 1(2). It is to ensure the achievement of a fast, efficient and speedy dispensation of justice. Order 11 which provides for summary judgment does not envisage any pretrial conference. It is a summary procedure that does not even by its nature permit a statement of defence. The procedure in Order 11 is a question whether a defence should be entered. I do not agree with learned Defendant counsel that there should be any pretrial at this stage because there is not even a close of pleadings.
I agree with counsel for the Claimant that the application for summary judgment and the objection of this suit can be taken

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together. I shall hear the objection to this suit and then the application for judgment and deliver one ruling in respect of both applications.”

The Appellant herein claimed that the Honouroble Trial Judge without application by either party, suo motu dispensed with the mandatory requirement for Pre-Trial Conference and ordered that the two pending applications be argued immediately. Dissatisfied with this interlocutory ruling of the trial Court, the Appellant appealed against the ruling by a notice of appeal dated and filed on 1/11/10 with two grounds of appeal. Out of the two grounds of appeal , learned counsel for the Appellant E. Odeh Esq. distilled three issues for determination as follows:
1. Whether the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 provide for the mandatory holding of Pre-Trial Conference.
2. Whether the ruling of the Learned Trial Judge dispensing with Pre-Trial Conference, was made in disregard to the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 which provides for the mandatory holding of Pre-Trial Conference.
3. Whether the decision of

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the Learned Trial Judge to act outside the provisions of Order 25 of the High Court of Lagos State (Civil Procedure) Rules 2004 was in the interest of justice.
Chief Ajibola Aribisala, SAN for the Respondent adopted the issues formulated by the Appellant.
APPELLANT’S ARGUMENTS :
Issues 1 and 2 argued together:
Mr. Odeh after setting out the provisions of Order 25 Rule 1 of the High Court of Lagos State (Civil Procedure) Rules 2004 submitted that by the clear wordings of the provision especially by the repeated use of the phrase ‘shall’ Pre-Trial Conference is not discretionary but mandatory. Relying on the case of ATTORNEY-GENERAL BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATION (1981) SC 1. He submitted that where the wordings of a statute or rule are clear and unambiguous, effect should be given to the ordinary clear and unambiguous meaning. Counsel referred to the reasons given by the learned trial judge for dispensing with pretrial conference and submitted that on the question of speedy disposal of the matter, the provisions of Order 25 limit Pre-Trial Conference to a three month period while the practice direction for fast track

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matters reduces the time limit for Pre-Trial Conference. Counsel submitted that from the records the matter was coming up before the Learned Trial Judge for the first time and that there was clearly no delay justifying the abrupt dispensation of Pre-Trial Conference suo motu by the Trial Judge.
Counsel further submitted that there is nowhere in the provisions of Order 11 or any other Order or rule of the High Court of Lagos State, (Civil Procedure) Rules 2004, where the requirement of Pre-Trial Conference is dispensed with. He posited that in any event, the application for summary judgment under Order 11 of the High Court of Lagos State (Civil Procedure) Rules 2004 was not the only application pending before the Learned Trial Judge; that there was also a Notice of Preliminary Objection pending at the same time which is on objection on points of law that falls within the actions to be taken by the Learned Trial Judge of the Pre-Trial Conference. Counsel cited Order 25 Rule 3 Sub-rule (f) of the High Court of Lagos State (Civil Procedure) Rules 2004 and submitted that the Notice of Preliminary Objection being on objection on point of law ought properly to

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