Universal Properties Ltd V. Pinnacle Commercial Bank & Ors (2022)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on 14th of April, 2008 wherein the lower Court dismissed in limine the appeal filed by the Appellant which was pending before the said Court for want of diligent prosecution. The Appellant’s brief was not before the Court although the Court had granted the Appellant extension of time to file the said brief. A summary of the facts leading to this appeal are as stated hereunder.

​The 1st Respondent (now under liquidation by the Nigeria deposit Insurance Corporation) as plaintiff on 14th July, 1992 commenced an action at the High Court of Lagos State against the 2nd and 3rd Respondents as 1st and 2nd Defendants respectively by a special endorsed Writ of Summons claiming the sum of N5,417,746.43 (Five million four hundred and seventeen thousand, seven hundred and forty-six naira, forty-three kobo only), interest on the said sum at 34% until judgment and thereafter until satisfied, resulting from a credit facility which it extended to the 1st Defendant and was guaranteed by the 2nd Defendant. Judgment was given in favour of the 1st Respondent but was not satisfied. The 1st Respondent, because of the inability of the 1st and 2nd Defendants (now 2nd and 3rd Respondents) to satisfy their indebtedness, applied and sold the immovable properties of the 3rd Respondent known as 12A and 12B Ladipo Oluwole Street, Lagos, titled number No. 0646.

The Appellant and 4th Respondent, upon becoming aware of the existence of the judgment including steps taken by the 1st Respondent to levy execution upon the properties of the 3rd Respondent, applied and were joined as parties to the suit. The 4th Respondent claimed it had an interest and mortgage over the property.

​Subsequent upon being joined, the Appellant applied to the trial Court for extension of time to apply to set aside the sale of their alleged properties by the 1st Respondent in the execution of the judgment against the 2nd and 3rd Respondents, an order setting aside the sale of the said properties and certificate of sale issued pursuant to the sale. The aforestated application was refused and dismissed by the learned trial Judge on 6th October, 2000. The Appellant being dissatisfied with the aforesaid ruling of the trial Court, appealed against the said decision to the Court of Appeal, Lagos Division.

At the Court of Appeal, the Appellant filed a motion on notice dated 5th June, 2002 for leave to file additional grounds of appeal, extension of time to bring in a supplementary record of appeal, an order deeming the supplementary record of appeal already compiled and served as duly filed and served, extension of time to file the Appellant’s brief of argument and an order deeming these processes as duly filed and served.

The Court of Appeal on 18th January, 2005 heard the Appellant’s motion dated 5th June, 2002 and extended the time allowed the Appellant to bring in the supplementary record, leave to file additional grounds of appeal which notice should be filed within fourteen (14) days from the date of Court order together with the Appellant’s brief of argument.

​On 25th May, 2006, the Appellant filed a motion on notice dated 22nd May, 2006 praying the lower Court for extension of time to comply with the orders made in favour of the Appellant on 18th January, 2005. When this motion on notice came up for hearing on 3rd July, 2006 the lower Court observed that the 2nd and 3rd Respondents thereat had not been served. The learned counsel for the Appellant applied to withdraw the motion which was granted by the Court below.

On 30th January, 2007, the 5th Respondent filed a motion on notice dated 25th January, 2007 urging the Court to dismiss the appeal for lack of diligent prosecution by the Appellant. The learned counsel for the Appellant filed a counter affidavit to oppose the said motion.

On 25th September, 2007, the Appellant filed an application dated 24th September, 2007 praying the Court to further extend the time within which to file additional grounds of appeal, Appellant’s brief of argument and to deem the processes filed as properly filed. The Appellant also sought to substitute the 1st Respondent with its liquidator – the Nigeria Deposit Insurance Corporation (NDIC) and also Spring Bank Plc for the 4th Respondent respectively. This motion was however not served on the 2nd 3rd and 4th respondents and was adjourned to 16th October, 2007 for hearing.

​At the hearing of the motion on 14th April, 2008, the Appellant again, applied to withdraw its motion dated 24th September, 2007, and filed on 25th September, 2007. The other parties did not object to the Appellant’s application to withdraw the said motion. The said prayer was granted by the lower Court and the motion for further extension of time was struck out.

Thereafter, the learned counsel for the 5th Respondent applied to the Court to be allowed to move the pending motion to dismiss the appeal for lack of diligent prosecution. The said motion was brought pursuant to Order 17 Rule 10 of the Court of Appeal Rules 2007. The lower Court acceded to the application of the learned counsel for the 5th Respondent. After the motion was successfully moved, the Court below granted the prayer by invoking the provision of Order 17 Rule 10 of the Court of Appeal for want of diligent prosecution.

Dissatisfied with the decision of the Court below, the Appellant filed Notice of Appeal on 12th May, 2008. The said Notice of Appeal has three grounds out of which the Appellant has distilled two issues for determination to wit:-

1. Whether in the circumstances of the appeal, the decision contained in the ruling of the Court of Appeal dismissing the appeal for want of prosecution was properly made under Order 17 Rule 10 of the Court of Appeal Rules, 2007,
2. Whether in the circumstances of the appeal, the dismissal of the appeal in limine by the Court of Appeal did not amount to denial of fair hearing to the Appellant.

For the 1st Respondent, its learned counsel, Ogechi Ogbonna Esq, who settled its brief, distilled two similar issues but couched differently as follows:-