Supreme Court to deliver judgment in N38.6B appeal against agency

The Supreme Court on Monday fixed
January 20, 2017 to deliver judgment on
appeal filed by AKAHALL & Sons seeking
payment of 265,077 Pounds Sterling
(N38.4 billion) from 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Nigeria Plc whose Bank licence was revoked by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 trail 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 Judicial
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.