The Supreme Court on Monday fixed Jan. 20, 2017 to deliver judgment on appeal filed by AKAHALL & Sons seeking payment of £265,077m (N38.4 billion) owned it by NDIC.
Justice Tanko Mohammed led four other Justices of the court to fix the judgment date after counsel to parties had adopted their addresses.
It was an appeal by the appellant against the decision of the Calabar Division of the Court of Appeal delivered on June 29, 2006.
In the said judgment, the Court of Appeal affirmed it to the effect that the trial court was competent to sit on appeal over its judgment entered based on undefended list procedure.
Chief Chris Uche (SAN), counsel to the appellant, argued that the judgment was set aside notwithstanding that the trial court found out that the case was properly on the undefended list.
In his statement of facts, Uche said that the respondent (NDIC) was a statutory corporation and the official liquidation of Allied Bank of Nigeria Plc whose Bank licence was revoked by the CBN.
He said the Bank was later wound up by an order of court.
Uche submitted that the respondent, among other statutory responsibilities was empowered to take over the affairs of failed and wound up Banks, recovering debts owned by such Banks.
He averred that the respondent was further mandated for dealing with or sorting out the staff, judgment creditors and sundry claimants in order of statutory priority.
Uche said the appellant who had an account with the Allied Bank of Nigeria Plc took out a writ of summons at the Federal High Court, Calabar on Aug. 17, 1998.
“The plaintiff’s claim was for the 42, 500 Pounds Sterling being money due to the appellant as a result of the sale of 50 tonnes of Cocoa.
“This was transaction by the appellant to overseas customers in respect of which payment was made to appellant’s Bank, the Allied Bank of Nigeria Plc.
“This amount was, however, not remitted to the appellant by the said Bank until it went into liquidation,’’ he said.
The appellant had also claimed 21 per cent interest on the said amount from Jan. 9, 1998 to July 31, 1998 amounting to 265,077 Pounds Sterling (N38, 436,212,000).
Uche further said his client had also claimed 21 per cent interest on the whole amount until final liquidation of the debt.
The appellant brought an application ex parte seeking various reliefs, including leave to sue the respondent as a liquidator and to also place the suit on the undefended list for hearing and determination.
The Federal High Court did grant all the reliefs on Aug.12, 1998 and placed the matter on the undefended list.
Before the matter could be heard, the respondent filed a notice of preliminary objection to the suit challenging the jurisdiction of the trial court to entertain it.
The trial judge entertained arguments on the motion and over ruled it and proceeded to enter judgment in favour of the appellant.
The respondent appealed against the decision of the trial court, challenging the competence of the appellant’s action.
The respondent argued that the court ought to have given it time to file a notice of intention to defend after over ruling its preliminary objection.
The respondent’s appeal was decided on Feb.17, 2003 and reported as N.D.I.C. v AKAHALL (2003)31 W.R.N 125 at page 158.
By this judgment, the Court of Appeal had upturned the initial judgment it gave in favour of the appellant and made a fresh order for a retrial
By this time, the Uyo Judicial Division had been created in Akwa Ibom from the Calabar Judicail Division of the Federal High Court.
It was to this new division that the case was remitted.
The court presided over by Justice Gladys Olotu after satisfying itself of proper service on the respondent entered judgment in the appellant’s favour on July 29, 2004.
The appellant, by an exparte motion sought from the trial court, an order of garnishee to attach the sums standing to the credit of the respondent/judgment debtor in its account with CBN.
The application was granted on Feb.2. 2005, and the respondent immediately made an application to set aside the judgment and also to discharge the garnishee order.
The court on July 29, 2005, setting aside its judgment of July 29, 2004 made in favour of AKAHALL & Sons.
The appellant being dissatisfied with the ruling of the trial court approached the Court of Appeal.
In a judgment entered on June 29, 2006, the appellate court dismissed the appeal on the grounds of two acclaimed recognisable errors.
The Court of Appeal held that the trial judge failed to consider certain statutory provisions that were not brought to his notice before the judgment was entered to justified it dismissal.
The appellant dissatisfied with the decision approached that Supreme Court by way of notice of appeal filed Sept.25, 2006.
The appellant had asked the apex court to decide whether the court of appeal was right in affirming the decision of the trial court in setting aside its judgment entered on undefended list.
It also urged the court to decide whether the court of appeal was competent to “Suo Motu’’ raise and decide that the service on the respondent was improper.
Uche, therefore, prayed the court to set aside the decision of the lower courts by upholding the appeal.
In his respondent brief of argument, Mr Ikani Agabi, counsel to NDIC, urged the court to dismiss the appeal on grounds of inconsistency and lacking in merit.
Agabi said that appellant had failed to fulfill a condition precedent to instituting the action, adding that it denied the trial court of jurisdiction to hear the claim under the undefended list procedure.
He argued that the appellant’s nature of claims, especially the claims for interest that was never agreed by the parties also robbed the trial court of jurisdiction to hear the matter under undefended procedure. (NAN)
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