Uba Plc V. John Michael Co. & (Nig.) Ltd (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This appeal is against the judgment of the Court of Appeal Lagos Division, delivered on the 23rd day of October, 2014, wherein the Appellant’s appeal against the judgment of the trial Court was unanimously dismissed by the lower Court.

The claim of the Respondent in this appeal as Plaintiff at the trial Court as per the writ of summons taken out on the 26th day of April 2000 reads as follows:

1. A declaration that the negligent payment by the defendant of money due to the plaintiff (in the sum of N7,339,217.25) into a private account instead of the plaintiff’s account is wrongful and unlawful.
2. An order for the payment of the defendant to the plaintiff of the sum of N1,738,171.28 representing interest at the rate of 21% on the said sum of N7,339,217.25 per annum from 12/5/98 to 28/6/99 being the period during which the defendant wrongly deprived the plaintiff of its money.
3. Further interest on the said sum of N1,738,171.28 at the rate of 21% per annum from 29/6/99 until the sum is fully liquidated.

The facts grounding this appeal are that the Appellant as defendant filed a statement of defence on 27th July, 2000. In 2004, when the Lagos State High Court (Civil Procedure) Rules came into force, the parties were required to follow the new rules. The Respondent therefore refiled its claims and complied with the new rules. Thereafter, the front-loaded processes were served on the Appellant, as defendant, in February, 2005. The Appellant did not file its accompanying documents in relation to the processes filed and served on it. At the pre-trial conference on the 13th day of April, 2006, the Court was informed that the defendant/applicant was served and was absent in Court. The trial Court was satisfied that the defendant/Appellant had been duly served, judgment was accordingly entered in favour of the Claimant/Respondent.

The Claimant/Respondent thereafter levied execution of the default judgment on the 26th day of July, 2006. The Appellant on the 31st day of July, 2006 filed a motion on notice and prayed, for a stay of further execution of the default judgment, an order setting aside the default judgment and an order for the release of the Appellant’s vehicles held in execution of the judgment. This application was supported by an affidavit and written address, further affidavit was also filed on the 8th day of August, 2010.

The Respondent filed counter-affidavit and written address in response. When the motion was argued, the learned trial judge delivered ruling dismissing the application of the Appellant.

The Appellant became aggrieved and lodged an appeal at the lower Court, the Court of Appeal Lagos Division. The lower Court in its judgment delivered on the 23rd day of October, 2014, dismissed the Appellant’s appeal and affirmed the decision of the trial Court. The decision of the lower Court therefore nettled the Appellant who further appealed to this Court on the 24th day of February, 2015 via notice of appeal containing two grounds of appeal.

Appellant’s brief of argument was filed on the 19th day of October, 2015 by learned Counsel Johnson Odionu Esq. In the Appellant’s brief of argument, learned Counsel nominated and argued two issues for determination, the issues are reproduced as follows:

a) “Whether the appellant was served with the necessary pre-trial conference forms 17 and 18 together with the hearing notice for pre-trial conference before the grant of the default judgment upheld by the Court of appeal. This relates to ground one of the Notice of Appeal.

b) Whether the Court of appeal was right to have held that Exhibit A with attached processes speaks for itself and does not necessitate the calling of oral evidence to resolve conflicting affidavits of the parties.”

The Respondent through learned Counsel A.M Makinde Esq., filed the Respondents brief of argument on the 15th day of February, 2015, learned Counsel also filed notice of preliminary objection on the 15th day of February, 2021 and argument in support of the said preliminary objection on the 17th day of March, 2021.

In the Respondent’s brief of argument, learned Counsel crafted two issues for determination, they are also reproduced as follows:

1. “Whether the appellant has made out a case of exceptional circumstances to warrant or justify the review of the concurrent findings of fact made by the Courts below on the question of service of processes on the appellant by this Court.
2. Whether the Court below was right when it held that the documentary evidence available to the Court has obviated calling oral evidence to resolve any conflict in the affidavit in support of the motion dated 31/7/2006 and the counter affidavit and further affidavit of the appellant.”

As I stated earlier, the learned Counsel, for the Respondent filed Notice of preliminary, I must state that the Appellant’s Counsel filed no response to the preliminary objection. In line with the settled position of the law, the Court has a duty to hear and determine the Preliminary Objection first before proceeding to consider and determine the substantive appeal if so doing turns out to be necessary. I will therefore in obedience to the dictates of the law, proceed to consider and determine the Respondent’s preliminary objection first.

THE PRELIMINARY OBJECTION