Pacers Multi-dynamics Ltd & Ors v. Access Bank (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

CHIMA CENTUS NWEZE, J.S.C. (Delivering the Lead Judgment)

This is an appeal against the judgment of the Court of Appeal, Lagos Judicial Division, delivered on January 26th, 2006. The judgment affirmed the ruling of the High Court of Lagos State, delivered on March 23rd, 2004.

The parties filed Terms of Settlement on April 30th, 2001, before the High Court of Lagos State, pursuant to which a consent judgment was entered by the trial Court. The relevant order of the trial Court pursuant to the terms of settlement, reads thus:

It is ordered that judgment be and is hereby entered as per the terms of settlement dated 20th day of April, 2001 and filed in Court on the 25th day of April, 2001, as follows:

1. The defendants have agreed to settle their indebtedness to the plaintiff by paying the total sum of N175 million (one hundred and seventy-five million, Naira) in full and final settlement of their entire indebtedness to the plaintiff on the various banking facilities granted to the first defendant by the plaintiff.
   
2. The agreed sum of N175 million (one hundred and seventy-five million naira) shall be paid by the defendant in the following manner:
   
   (a) The defendants herein shall pay to the plaintiff an initial sum of N90 Million within 45 days from the date of the execution of this ‘terms of settlement’ by parties.
   (b) The defendants shall pay over the balance of N85 million to the plaintiff within 9 months from the date of the execution of the terms of settlement by the parties herein.

(c) The said balance of N85 million shall be guaranteed irrevocably by a deed of ‘letter of guarantee’ by the Universal Trust Bank Ltd in favour of the plaintiff’s bank to be made available within 21 days from the execution of this ‘terms of settlement’ by the parties herein.

​From the total judgment sum of N175 million, the sum of N90 million was paid, leaving the sum of N85 million unpaid. Eleven months after the judgment debt had become due and payable, the appellants (judgment debtors), filed an application on December 12th, 2002, before the trial Court seeking the following reliefs:
(a) An Order granting leave to the applicant to vary the terms of settlement entered in this suit as consent judgment in the terms of Schedule “A” hereto.

ALTERNATIVELY
​(b) An Order of installment payment of the sum due to the plaintiff/judgment creditor pursuant to the consent judgment entered in this suit in terms of schedule ‘A’ hereto.

In the course of moving the application at the trial Court, the appellants abandoned relief (a) and eventually moved the alternative relief, relief (b).

After considering arguments on both sides, the trial Court, by its ruling delivered on March 23rd, 2004, declined jurisdiction to hear the application on the grounds that it had become functus officio and had no power to invoke the rule in Order 38 Rule 7 of the trial Court’s rules, on the judgment as it was. Consequently, the trial Court dismissed the application for lacking in merit.

Being dissatisfied with the ruling of the trial Court, the appellants appealed to the Court of Appeal, Lagos Judicial Division, via a Notice of Appeal containing two Grounds of Appeal. The lower Court, by its judgment, delivered on January 26th, 2006, dismissed the appeal, consequently affirming the ruling of the trial Court.

​Still dissatisfied by the judgment of the lower Court, the appellants have now appealed to this Court via an amended Notice of Appeal filed on October 5th, 2020, containing two Grounds of Appeal.

In support of their appeal, and from the two Grounds of Appeal set out above, the appellants filed their amended brief of argument on October 5th, 2020. In arguing the appeal on September 26th, 2022, Mr. O. O. Oniyire, counsel for the appellants, adopted the said brief and the arguments contained therein, as their legal arguments in the appeal.

​In the said brief, learned counsel distilled a sole issue for determination, to wit:
Whether the Court of Appeal, in spite of admitting that the High Court has misinterpreted Order 38 Rule 7 of the High Court of Lagos State (Civil Procedure) Rules, 1994 (now Order 39 Rule 4 (a) of High Court of Lagos State (Civil Procedure) Rules, 2019), and by extension, the dictum in Ahmed v. AIB Ltd (Supra), in declining jurisdiction to the appellant’s application, was right in refusing the appeal of the appellant?

On its part, the respondent filed an amended brief of argument on October 12th, 2020. At the hearing of the appeal on September 26th, 2022, Mr. Abayomi Adeniran, counsel to the respondents, adopted the said brief and the arguments contained therein, as his legal arguments in the appeal. In addition, learned counsel abandoned their notice of preliminary objection and arguments therein, which was incorporated into his brief of argument. He distilled a lone issue for determination; to wit: