CORAM

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PARTIES

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OLUWATIMILEHIN IFARAMOYE APPELLANTS

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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None

 

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SUMMARY OF FACTS

The Appellant as the Plaintiff instituted an action under the Undefended List Procedure against the Respondent as receiver and liquidator of Allied Bank of Nigeria Plc for monies owed it by Allied Bank of Nigeria Plc. At the conclusion of trial, judgment was entered in favour of the Appellant following the dismissal of the Respondents preliminary objection challenging the jurisdiction of the court to hear the matter. An appeal by the Respondent to the Court of Appeal, Calabar, was allowed for breach of the Respondents right to fair hearing thereby dismissing the decision of the trial court.

The Court made an order for the matter to be heard de novo before a different Judge of the Federal High Court. At the time the order for retrial was made, Akwa Ibom State had been created from Cross River State, resulting in the matter being transferred to the Uyo Division of the Federal High Court. The Respondent failed to put in an appearance or file a Notice of Intention to defend hence, judgment was again entered against the Respondent.

Following the judgment, the Respondent brought an application for the judgment to be set aside on the grounds that certain conditions precedent to instituting the action had not been complied with, as the Appellant had failed to comply with section 493 of the Companies and Allied Matters Act 1990, that subjects all claims against a wound-up company to prior proof under the Bankruptcy Act Cap. 30 Laws of the Federation of Nigeria 1990; section 32(3) (8)(b) and (c) of the Bankruptcy Act; the Nigerian Deposit Insurance Corporation Act, 1990 that gives the Nigerian Deposit Insurance Corporation the power to prove claims made against a failed bank and Rules 70-101 of the Companies Winding Up Rules 1983, that stipulate the procedure for proving debts against a wound-up company. After hearing the application, the trial court set aside the judgment and transferred the matter to the general cause list. Dissatisfied with the decision the Appellant appealed to the Court of Appeal, which dismissed the appeal. The Appellant has further filed an appeal against that decision before this court.

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HELD

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Appeal Allowed

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ISSUES

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– Whether the Court below was justified in upholding the decision of the trial Court admitting the confessional statement of the Appellant (Exhibit B-B1) in evidence – Whether, in the circumstances of this case, the Court below was right in upholding the decision of the trial Court which placed reliance on Exhibit B-B1 and acted on it in convicting and sentencing the Appellant to death

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RATIONES DECIDENDI

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PARTICULAR OF ERROR -PURPOSE OF PARTICULAR OF ERROR

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“Ground of appeal is the totality of the reasons why a decision that is complained of by a
party is considered wrong, and the purpose of Particulars is to advance reasons for the
complaints in grounds of appeal – see Ehinlanwo V. Oke (2008) 16 NWLR (Pt. 1113)
357 and Diamond Bank V. Plc Ltd. (2009) 78 NWLR (Pt. 1172) 67.

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JURISDICTION- DIFFERENCE BETWEEN ALLEGED IRREGULARITY IN THE EXERCISE OF JURISDICTION AND A TOTAL LACK OF JURISDICTION

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“The non-compliance with statutory provisions that stipulate for pre-action notices to be given before the commencement of proceedings in court is usually touted as jurisdictional matters. However this Court in Mobil Producing (Nig.) Unlimited v. LASEPA (2002) 18 NWLR (Pt. 798) 1 explained the difference between alleged irregularity in the exercise of jurisdiction and total lack of jurisdiction and the incidents that attach to each. In the lead judgement by Ayoola JSC he explained the correct position of the law at pages 31-32 as follows:- Much stress has been placed on the argument that noncompliance with provisions such as section 29(2) of the Act (Federal Environmental Protection Agency Act) leads to a question of jurisdiction which can be raised at any time and which if resolved against the appellant renders the entire proceedings a nullity. This rather mechanical approach to the issue which tends to ignore the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. When the competence of the court is alleged to be affected by procedural defect in the commencement of the proceedings and the defect is not evident but is dependent on ascertainment of facts the incompetence cannot be said to arise on the face of the proceedings. The issue of facts if properly raised by the party challenging the competence of the court should be tried first before the court makes a pronouncement on its own competence. Where competence is presumed because there is nothing on the face of the proceedings which reveals jurisdictional incompetence of the court, it is for the party who alleges the court’s incompetence to raise the issue either in his statement of defence in proceedings commenced by writ or by affidavit in cases commenced by originating summons. A judgement given in proceedings which appear ex facie regular is valid.

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JURISDICTION – WHETHER THERE ARE STATUTORY PROVISIONS CONFERRING JURISDICTION ON A TRIAL COURT TO SIT ON APPEAL OVER ITS JUDGEMENT ENTERED ON THE MERIT

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“I am in total agreement with the submission of learned senior counsel for the appellant that these statutes which I mentioned a while ago do not confer jurisdiction on the trial court to sit on appeal over its judgement entered on the merits since a judgement entered in favour of the Plaintiff on the undefended list is a judgement on the merit and can be overturned only on appeal. See: First Bank (Nig.) Ltd v. Khaladu (1993) 9 NWLR (Pt. 315) 44 at 56”. PER K.B. AKAAHS, J.S.C

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UNDEFENDED LIST PROCEDURE – IMPLICATION OF FAILURE TO FILE A NOTICE OF INTENTION TO DEFEND UNDER THE UNDEFENDED LIST PROCEDURE

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“It was explained in First Bank (Nig.) Ltd v. Khaladu supra at page 55 that the failure to deliver a notice of intention to defend means only one thing that is, that the defendant has no defence to the plaintiffs claim. Therefore failure to file or deliver a notice of intention to defend as provided by the rules is tantamount to an admission that facts admitted need no proof.”

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MISTAKE IN DECISION OF COURT – PROCEDURE FOR CORRECTING MISTAKE IN THE DECISION OF A COURT

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“Furthermore where a Court makes a mistake of law in its decision, that mistake can be corrected only through appeal except where the judgement is given without jurisdiction. See Mark v Eke (2004) 5 NWLR (Pt 865) 54 at 77.”

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JUDGEMENT OF COURT – NATURE OF JUDGEMENT ENTERED IN FAVOUR OF A PLAINTIFF UNDER THE UNDEFENDED LIST

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“I, entirely, agree with His Lordship that a judgement entered in favour of a plaintiff on the Undefended List is a judgement on the merits and not a judgment entered in default, Mark and Anor v Eke (2004) LPELR -1841 (SC) 23, D -F. As such, the trial court cannot set it aside; U.A.C. (Technical) Ltd. v. Anglo Canadian Cement Ltd. (1966) NMLR 349; Bank of the North Ltd, v Intra Bank S.A. (1969) 1 ANLR 91.”PER C.C. NWEZE, J.S.C

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UNDEFENDED LIST PROCEDURE – NATURE AND PURPOSE OF THE UNDEFENDED LIST PROCEDURE

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“Enunciating the rationale for this prescription, this court in Wema Securities and Finance Plc v NAIC (2015) -24833 (SC) -67 -70, E-C, explained [per Nweze, JSC] that: …the Undefended List procedure is a truncated form of the civil litigation process peculiar to the adversarial judicial system. Under the said procedure, ordinary hearing is rendered unnecessary due, in the main, to the absence of an issue to be tried, UBA and Anor v Jargaba (2007) LPELR -3399 (SC) 27; Agwuneme v Eze [1990] 3 NWLR (pt. 137) 242. Essentially, therefore, it is designed to secure quick justice and to avoid the injustice likely to occur when there is no genuine defence on the merits to the plaintiffs case, International Bank for West Africa Limited v Unakalamba [1998] 9 NWLR (pt. 565) 245. It is, usually, meant to shorten the hearing of a suit where the claim is for a liquidated sum, Cooperative and Commerce Bank (Nigeria) Plc v. Samed Investment Company Limited [2000] 4 NWLR (pt. 651) 19. Put differently, the object of the rules relating to actions on the undefended list is to ensure quick dispatch of certain types of cases, such as those involving debts or liquidated money claims, Bank of the North v Intra Bank SA (1969) 1 All NLR 91; Bendel Construction Co. Ltd, v Anglo Development Co. (Nigeria) Ltd[1972] All NLR (ptl) 153; Olubusola v StandardBank(1975) 1All NLR (pt. l) 125; N. M. C. B. (Nig) Ltd v Obi(2010) LPELR -2051 (26) 26, which are, virtually, uncontested, Ataguba and Co v Gura Nig Ltd (2005) LPELR -584 (SC) 16-17; Macaulay v. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 at 324-325; Nwankwo and Anor v EDCS UA (2007) LRELR -2AQS (SC) 46,Bank of the North v Intra Bank S.A. (1969) 1 All NLR 91; Ataguba & Co. v. Gura (Nig.) Ltd. [2005] 8 NWLR (pt. 927) 429; [2005] 2SCNJ, 139,157; [2005] 2 S.C (Pt. l) 101; Such rules are, thus, designed to relieve the courts of the rigour of pleadings and burden of hearing tedious evidence on sham defences mounted by defendants who are just determined to dribble and cheat plaintiffs out of reliefs they are normally entitled to because the case is, patently, clear and unassailable, Cow v. Casey (1-949) 1 K.B. 482; Sodipo v. Leminkainen and Ors [1986] NWLR (pt.15) 220; UBA and Anor v Jargaba (2007) LPELR -3399 (SC) 24; Obaro v Hassan (2013) LPELR -20089 (SC); Planwell Ltd v Ogala [2003] 18 NWLR (pt. 852) 478; [2003] 12 SCNJ 58, 68. In such a case/it would be inexpedient to allow a defendant to defend for the mere purpose of delay, Sodipo v Leminkainen [1986] 1 NWLR (pt.15) 220; Adebisi Macgregor Ass. Ltd v N. M.B. Ltd [1996] 2 NWLR (pt.43) 378; [1996] 2 SCNJ 72, 81. See, also, C. C. Nweze, Law and Procedure in Suits on the Undefended List (Enugu: Hamson Publishers, 1998) 45.”

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CASES CITED

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STATUTES REFERRED TO

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None

 

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