National Institute For Policy And Strategic Studies (Nipss) Kuru V. Kraus Thompson Organisation & Ors (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against part of the ruling of Pedro, J. of the High Court of Lagos State delivered on 7th July, 2006. The fact of the case is that on 13th May, 1996, the 1st Respondent herein as Claimant obtained a default judgment at the lower court against the Appellant. On 27th May, 1996, the Appellant filed a motion on notice asking the court to set aside the said default judgment but the court on 29th November, 1996 delivered its ruling striking out the Appellant’s motion.

The Appellant as Defendant appealed against the said ruling of the lower court to this Court vide an Amended Notice of Appeal dated 4th December, 1998. However, the Appellant’s appeal was dismissed on 2nd June, 1999 for failure to file its Brief of Argument but the appeal was subsequently relisted on 25th January, 2000 vide a ruling of Court and the appeal was heard on its merit and judgment delivered in favour of the Appellant on 18th January, 2001.

Meanwhile, the 1st Respondent, dissatisfied with the ruling relisting the appeal, filed a Notice of Appeal dated 2nd March, 2000 to the Supreme Court.Courts & Judiciary

It also filed another Notice of Appeal dated 8th February, 2001 challenging the judgment of this Court of 18th January, 2001. By virtue of this Court’s judgment of 18th January, 2001, it was ordered that the Appellant’s application dated 29th May, 1996 be heard de novo before another judge of the trial court. Moreover, the Supreme Court gave judgment in favour of the 1st Respondent on 7th May, 2004 in respect of the Notice of Appeal setting aside the ruling of this Court on 25th January, 2000.

Whilst the 1st Respondent’s appeal was pending at the Supreme Court, the trial court, Per Pedro J. heard and determined the application of 27th May, 1996 de novo and on 28th July, 2003 the court delivered its ruling setting aside the judgment of 13th May, 1996. Subsequent upon the judgment of the Supreme Court, the 1st Respondent filed a motion ex-parte at the lower court for a Garnishee Order Nisi attaching the accounts of the Appellant due to the default judgment it obtained on 13th May, 1996.

The Garnishee Order Nisi was granted by the lower court on 1st November, 2005. The Appellant thereafter, filed a motion on notice dated 15th November, 2005 to participate in the Garnishee proceedings and discharge the order nisi. On 7th July, 2006, the trial court delivered its ruling and held that the judgment of the court of 13th May, 1996 came alive by virtue of the Supreme Court’s judgment of 7th May, 2004.

The Court also terminated the Garnishee proceedings for non-compliance with condition precedent and lack of jurisdiction. Dissatisfied with the part of the ruling of the trial court revalidating the judgment of 13th May, 1996, the Appellant vide a Notice of Appeal dated 2nd of August, 2006 and filed 8th August, 2006 appealed against the ruling of the court.

In compliance with the rules of court, the Appellant filed an Amended Brief of Argument dated 05/02/2014 and filed 07/02/2014 but deemed properly filed 13/02/2014 and settled by P.A. Akubo SAN of Akubo & Co as well as an Amended Reply Brief dated 06/05/2014 and filed on 08/05/2014. 1st Respondent’s Further Amended Brief of Argument is dated and filed 18/02/2014 but settled by O.T Opara (Mrs) of Messrs Rickey Tarfa & Co.

Appellant formulated two issues for determination thus:

1. Whether upon dispassionate consideration of the Affidavit evidence and having regard to the entire circumstances of the case, the learned trial judge was right in holding and coming to the conclusion that the judgment of 13th May,

1996 was still valid and subsisting (notwithstanding the Ruling of 28th July, 2003 setting same aside) on the ground that the Judgment had come alive vide the Judgment of the Supreme Court dated 7th May 2004 having regard to the principle of stare decisis. (Grounds 1, 2, 3, 4 and 5).

ALTERNATIVELY

Whether upon a careful evaluation of Affidavit evidence and having regard, to the entire circumstances of this case, the learned trial Judge was correct in his holding and coming to the conclusion that the Judgment of 13th May, 1996 subsequently set aside on 28th July, 2003 was still valid and subsisting on ground that same has been resuscitated by the Judgment of the Supreme Court dated 7th May, 2004 vide the principle of stare decisis. (Grounds 1, 2, 3, 4 and 5).

2. Whether the learned trial judge had the jurisdiction to revive, restore and/or validate the Judgment of 13th May, 1996 having subsequently set aside same vide a Ruling dated 28th July, 2003 on the ground that the Supreme Court Judgment of 7th May, 2004 had nullified every step taken by the Court. (Grounds 3 and 6).Courts & Judiciary

The two issues formulated by the 1st Respondent are virtually the same as those formulated by the Appellant. 1st Respondent’s counsel ought to have adopted the issues formulated by the Appellant as there are no discernible differences in the issues as formulated. It is therefore obvious that parties are ad idem on the issues for determination in respect of this appeal.