Dr Ogunlewe v Union Bank of Nigeria Plc (CA/L/896/12) [2016] NGCA 16 (21 June 2016)


Holden at Lagos








This appeal is against the judgment of the Lagos State High Court delivered on the 16th March, 2012 by HON. JUSTICE OLOKOBA wherein the court entered summary judgment in favour of the Respondent. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal dated 19th March, 2012 with five grounds of Appeal.

    The brief facts leading to this appeal are simply that the Respondent took out a writ of summons claiming as follows:

i.    The sum of 266,559,168.00 being the total amount outstanding as at February 1, 2010 on the facility granted to the Defendant now appellant by the Claimant from November 16, 2007 at the defendant’s request in the usual course of business which sum the defendant has refused to repay.

ii.    Interest on the said sum of N266,559,169.00 at the rate of 20% from February 1, 2010 until judgement and thereafter at the rate of 7% per annum until the sum is fully paid.

iii.    An order for sale of the property known as Plot 323, Victoria Island Annex, Lagos covered by the Lagos State Certificate of Occupancy No. 8/8187 registered as No. 8 page 8 in Volume 1987C in the Lagos Land Registry.

iv.    Cost of the action.

The Respondent also filed a motion for Summary Judgment to which the Appellant opposed by filing relevant processes such as statement of defence and a counter affidavit opposing the motion for summary judgment.  The court took the application for summary judgment and adjourned same for ruling.  Subsequently the Appellant filed a motion dated 22/2/2012 seeking to strike out the Respondent’s action before the lower court on the ground that the debt which is the subject matter of the action had been assigned or sold to the Asset management company of Nigeria and therefore the Respondent had no right of action. The Respondent filed a counter affidavit supported by a written address.  The said motion was pending before the lower court before the trial judge delivered his judgement. The said pending motion was therefore not considered when judgement was delivered on the 16/3/2012.

Dissatisfied therefore, the Appellant filed his Notice of Appeal containing five grounds of appeal. The Appellant’s brief settled by Adewale Adesokan dated 13/3/2014 was filed on the same date and a reply Brief dated 14/3/16filed on the same date also.  The Respondent’s brief settled by Bisi Bello dated 10/12/2014 was filed on the 17/2/15 and deemed on the 2/3/16.  The briefs were adopted at the hearing of the appeal. The Appellant formulated 3 issues for determination as follows:

1.    Whether having raised the issue of the competence of paragraphs 3, 4, 5, 6 and 10 of the Appellant’s counter Affidavit filed in opposition to the application for summary judgement suomotu the lower court was bound to call on parties to address it on the issue before considering and deciding the issues.

2.    Whether the lower court ought to have heard and determine the Appellant’s motion on Notice challenging the locus standi of the Respondent to further maintain the action rather than proceeding with the delivery of its judgment on March 16, 2012 in respect of the application for summary judgment.

3.    Whether the lower court was right to have entered summary judgment in favour of the Respondent having regard to the Counter Affidavit and Statement of Defence filed by the Appellant.

The Respondent also distilled 3 issues for determination namely:

i.    Whether in evaluating the affidavit evidence placed before it the lower trial court did raise any issue suomotu that would have warranted that court to call on the parties to address it on such an issue before delivering its Ruling/Judgement.

ii.    Whether the lower court was in error when on the 16th March 2012, it proceeded to deliver its Judgment on the Respondent’s motion for summary Judgment when it was not aware of the pendency of the Appellant’s motion on Notice challenging the further prosecution of the Respondent’s suit.

iii.    Whether the lower trial court was right when it entered summary judgment in favour of the Respondent having considered the counter affidavit and statement of defence filed by the Appellant and found them otiose.

Both sets of issues are basically the same but for the different way they are couched. The court shall adopt issues set forth by the Appellant for determination in this appeal.  Looking at the 3 issues closely, issue number 2 raises a jurisdictional question which must be taken first before the other issues can be considered.  I shall therefore start determining the appeal on issue 2.

“Whether the lower court ought to have heard and determined the Appellant’s Motion on Notice challenging the locus standi of the Respondent to further maintain the action rather than proceeding with the delivery of its judgment on March 16th, 2012 in respect of the application for summary judgement.”

It was contended by the Appellant that due to the fact that the Respondent had assigned the Appellant’s indebtedness to AMCON, the Respondent no longer had the right to maintain the action and due to the consequential lack of locus standi on the part of the Respondent, the Appellant had to file the application for striking out. Furthermore, the Appellant submitted that since the application challenged the locus standi and by extension the competence of the court in proceeding with the matter, the court ought not to have ignored the application and proceeded to give judgment.  That locus standi is a crucial matter touching on jurisdiction which the court is obliged to determine before going into the merits of the case, citing the case of ADESANYA V PRESIDENT OF NIGERIA (1981) 2 NCL 358.  The Appellant further submitted that the Respondent must not only have the

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