Nigerian Deposit Insurance Corporation V. Lagos State Govt. & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

ADZIRA GANA MSHELIA, J.C.A.

This is an interlocutory Appeal against the ruling of the Federal High Court delivered by Okeke J. on February 18th, 2003 wherein she discharged an Ex-parte order made on 27th January, 2003 on the ground that the order had elapsed by effluxion of time.

The Plaintiff now appellant brought an action by way of originating summons at Federal High Court Lagos claiming the following reliefs:-

“i. A declaration that the 1st Defendant having taken over the 3rd Defendant’s debt/liability to the Plaintiff to which the 1st Defendant has part performed; is bound by law to honour and perform all obligations entered thereto.

ii. A declaration that the 1st Defendant having defaulted in the payment of the sum of N250 million monthly installment in the cumulative sum of N1.750 billion has breached the agreement entered into with the Plaintiff.

iii. An order for specific performance of the agreement reached between the 1st Defendant and the Plaintiff on 28th February, 2002 to wit: that the 1st Defendant shall pay the sum of N250 million on the 25th of every month to the Plaintiff for itself and all the creditors of the Eko Akete 2004 housing project until the debt owed the consortium/creditors by the 3rd Defendant is finally liquidated.

iv. Judgment in the sum of N1.750 billion being the arrears of the N250 million monthly installment due to Plaintiff and payable by the 1st Defendant as per the agreement entered into by the parties.

v. Cost of the action.”

The Plaintiff now appellant instituted the action in a representative capacity at the Federal High Court. The lower court on the appellant’s motion ex-parte and the Exhibit attached, granted the Appellant leave to sue in representative capacity and made a preservative order on the 27th January, 2003 owing to the colossal amount involved. Upon the service of the lower court’s said orders the 1st Respondent filed an application dated 31st January, 2003 to discharge the ex-parte order and another application dated 3rd February, 2003 challenging the jurisdiction of the court. At the instance of the 1st Respondent the matter was fixed for 5th February, 2003 but was refixed for 6th February, 2003 due to absence of counsel to 1st respondent in court. On the 6th February, 2003 the court ruled that the 1st Respondent’s application dated 3rd February, 2003 challenging jurisdiction of the court would be heard first, and the matter was adjourned to the 10th February, 2003 the date originally fixed for the hearing of the Appellant’s motion on notice. On 10th February, 2003 the 1st Respondent’s application dated 3rd February, 2003 challenging the jurisdiction was heard. The 1st Respondent’s counsel thereof by oral application urged the court to discharge the interim order made on the 27th January, 2003 on the grounds set out in the motion paper dated 31st January, 2003. The court adjourned to 19th February, 2003 for Ruling on both applications. On 17th February, 2003, the Appellant received hearing notice to hear the 1st Respondent’s application dated 14th February, 2003 seeking discharge of the Ex-parte Order filed “this time” by the Attorney General of Lagos State for hearing on 18th February, 2003. On the 18th February, 2003 the court held that the 1st Respondent application of 14th February, 2003 filed by the Attorney-General is same as their earlier application dated 31st January, 2003 and therefore would not take argument on the application and by consent of counsel delivered its ruling whereof it discharged the preservative order on the ground of effluxion of time. The lower court specifically discharged its preservative order on the ground of effluxion of time.

Being dissatisfied with the decision of the Federal High Court, the appellant filed a Notice of Appeal on 19th February, 2003 containing one ground of appeal.

In accordance with the practice of this court, the appellant’s brief of argument settled by Oluwakemi Balogun was filed on 27/5/2003. A reply brief was also filed on 13/1/04. 1st and 2nd Respondents brief of argument was also filed on 26/8/03. 3rd respondent also filed cross-appellant’s brief on 8/4/04 and same filed pursuant to Notice of Appeal filed on 7/4/04. 4th, 5th and 6th respondents did not file their brief of argument. 7th respondent filed brief dated 30/9/03 pursuant to order of this court made on 16/10/2003.

When the appeal came up for hearing on 20/4/09 Appellant’s counsel adopted both appellant’s brief and rely brief and urged the court to allow the appeal. Issue 2 was abandoned and same struck out. 1st respondent’s counsel Mr. Williams (Jnr) adopted the brief of argument and urged the court to dismiss the appeal. While 3rd respondent’s counsel adopted the cross-appellant’s brief filed on 7/4/04 pursuant to Notice of cross-appeal filed on 8/4/04. 7th respondent’s counsel Mr. Onamade also adopted the brief dated 30/9/03 filed pursuant to order of court made on 16/10/2003. Learned counsel abandoned issue 2 out of the three issues formulated and same was struck out.

Appellant initially formulated three issues for determination but during the hearing of the appeal issue 2 was abandoned and struck out. Issue 3 is now renumbered issue 2. The remaining issues are:-

1. Whether having regard to order 9 Rule 12 of the Federal High Court Rules 2000, the Ex-parte order of 27th January, 2003 elapsed on the 10th February, 2003 by effluxion of time.
2. Whether in the circumstances the lower court’s exercise of discretion in discharging her Ex-parte order on 27th January, 2003 was exercised judiciously and judicially.

For the 1st and 2nd respondents they adopted issues formulated by the appellant.