Legalpedia Citation: (2023-05) Legalpedia 78172 (CA)

In the Court of Appeal

KADUNA JUDICIAL DIVISON

Fri May 26, 2023

Suit Number: CA/K/203/2019

CORAM

MOHAMMED BABA IDRIS JCA

MUSLIM SULE HASSAN JCA

PARTIES

ECOBANK NIGERIA LIMITED

APPELLANTS

ABUBAKAR AHMED TIJANI

RESPONDENTS

AREA(S) OF LAW

APPEAL, BANKING LAW, COTRACT, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Plaintiff (now Respondent) at the lower court claimed that, as at the 23rd January, 2014 he had the sum of N12, 119,064 (Twelve Million One Hundred and Nineteen Thousand and Sixty-Four Naira) only in his account No: 211256604 with the Defendant (now Appellant) and on the 23rd day of January, 2014 he withdrew the sum of N150, 000.00 only from his account through an ATM at the Appellant’s branch at PZ in Zaria.

He also claimed that he issued a Cheque No. 00000055 050151365 2112256604 01 dated 23rd day of January, 2014 for the purchase of a property valued N5, 300,000.00 (Five Million Three Hundred Thousand Naira) only in favour of the seller only for the cheques to be returned unpaid and he thus received a letter revoking the sale. He further claimed that he subsequently went to the ATM machine located within the Appellant’s Zaria Branch and made two E-Payment transfers which turned out to be unsuccessful but N200 was deducted for the respective transaction and when he approached the Defendant (Appellant) to make his complaint, he was not given any satisfactory answer.

The Plaintiff (Respondent) claimed to have suffered heavy loss of money from his inability to have access to funds in his bank account with the Defendant’s (Appellant’s) bank.

He moved three applications before the lower court – a motion ex-parte for mandatory orders, another motion ex-parte for substituted service and a motion on notice for mandatory orders and the court consequently granted the motion ex-parte for substituted service and the Motion on Notice for mandatory orders.

Dissatisfied with the ruling of the court Defendant (Appellant) made the instant appeal.

HELD

Appeal allowed

ISSUES

Ø Whether from the ruling dated 7th day of April, 2014 the honourable Trial High Court, Kaduna state in Suit No. KDH/Z/62/2014 had not determined the entire suit from the mandatory order of injunction stated in the ruling which is the same with the reliefs contained in the Respondent’s writ of summons and statement of claim dated 27/2/2014?

Ø Whether the Honourable Trial High Court, Kaduna State in Suit No: KDH/Z/62/2014 was right in law in granting all the prayers in the respondent’s Motion on Notice dated 6/2/2014 seeking for mandatory order of injunction against the Appellant when the Respondent failed to fulfill all the mandatory pre-conditions before grant of same mandatory order of injunction?

Ø Whether the Appellant’s right to fair hearing had been breached when there was no proof of service of the Respondent’s originating processes and Motion on Notice dated 6/2/2014 on the Appellant before the grant of mandatory order of injunction dated 7/4/2014?

RATIONES DECIDENDI

INTERLOCUTORY MATTERS – CONDUCT OF COURTS IN DETERMINATION OF INTERLOCUTORY MATTERS

Just as the Appellant’s Counsel has argued and which argument I totally agree with, this Court and indeed the Apex Court has always warned that courts should desist from making positive pronouncements on the substantive issues when they are only engaged in the determination of the interlocutory matters before them and making a mandatory order as such, is tantamount to making a final order. See the case of UNIVERSITY PRESS LTD VS. I. K. MARTINS NIG LTD (2000) 4 NWLR (PT. 654) 584 AT 595, where the Apex Court held inter alia that the trial court as well as the Appellate Court should desist from making positive pronouncements touching on the substantive issues while they are only engaged in the determination of interlocutory matters before them. The practice is unacceptable because it prejudges the real matter in controversy even before the evidence and arguments by learned counsel have not been marshaled on the substantive issue. – Per M. B. Idris, JCA

MANDATORY INJUNCTION – CONDUCTS OF COURTS REGARDING MANDATORY INJUNCTIONS

Speaking about the nature of mandatory injunction, the Supreme Court in the case of A. G., ANAMBRA STATE VS. OKAFOR (1992) 2 NWLR (PT. 224) 396 AT 426 PARAS E – H held inter alia as follows:

“…since their evolution, courts have always been, and are still, reluctant to issue orders for mandatory injunctions except in very clear cases. They have always required the clearest evidence as well as very high standard of proof so as to make sure that at the trial, it will still appear that the order of mandatory injunction was rightly made, as grave consequences could follow such an order. In practice, therefore, there must be either a trial of a claim for mandatory injunction or at least a substantive prayer in an application for it in clear terms followed by irrefutable evidence of the infringement that entitles the applicant to the order.”

It is clear from the above authority what needed to be considered in the grant of a mandatory injunction. – Per M. B. Idris, JCA

SERVICE – PROOF OF SERVICE BY SUBSTITUTED MEANS

Just as the Appellant’s Counsel has argued that it is true that there is nowhere from the record of proceedings where this Court can draw the conclusion that the Appellant was served the originating processes after the order for service by substituted means was made by the trial court and as provided by Order 7 Rule 13 of the Rules of the trial court, the person who served any such processes should promptly depose to and file an affidavit setting out the fact, date, time, place, and mode of service and describing the process served and exhibit a copy of the process served and the affidavit shall be prima facie proof of service. This Court cannot tell from a mere UPS teller of courier service as contained at pages 94 and 95 of the Record of Appeal that the service was to the Appellant with reference to the suit leading to this appeal. If service was not done or properly seen to have being done, then the trial court cannot be said to have the jurisdiction in the first place to make the order as he has done, and I so hold. – Per M. B. Idris, JCA

CASES CITED

NIL

STATUTES REFERRED TO

1. Kaduna State High Court (Civil Procedure) Rules.
2. Sheriffs and Civil Process Act, CAP S6, LFN 2004.

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