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F.B.N. Plc. v. Iwumune

FIRST BANK OF NIG. PLC

V

CYRIACUS IWUMUNE

COURT OF APPEAL

( LAGOS DIVISION )

GEORGE ADESOLA OGUNTADE JCA ( Presided )

SULEIMAN GALADIMA JCA

PIUS OLAYIWOLA ADEYEMI JCA (Read the Lead Judgment)

CA/L/93/95

THURSDAY, 6TH FEBRUARY, 2003

ACTION - Party to an action - Who is

APPEAL - Grounds of appeal - Where incompetent - Issues for determination based thereon - Effect

APPEAL - Issues for determination - Whether predicated on incompetent grounds of appeal - Effect of

APPEAL - Leave of court - When required to be sought and obtained before filing his appeal

PRACTICE AND PROCEDURE - Objection that plaintiff’s claim discloses no cause of action - Defendant raising same through the statement of defence before filing motion on notice to raise the objection - Propriety of

PRACTICE AND PROCEDURE - Reasonable cause of action Objection that case did not disclose -  Where raised through statement of defence before filing of motion on notice - Propriety of


Issues:

1.              Whether the High Court has jurisdiction to set aside, amend, nullify or review the order made by the Court of Appeal on 14 /3/90 in suit No. CA/L/10M/ 90.

2.              Whether the photocopies of public documents already filed in court legally admissible in law.

3.              If the answer to issue No. 2 is in the negative, in the absence of the guarantee bond wrongly admitted, was there any cause of action made out against the appellant?

4.              Whether the High Court was justified in making far-reaching decisions and conclusions which prejudiced the substantive suit still pending.

5.              Whether or not the guarantee bond issued and executed by the appellant in contravention of the order made by the Court of Appeal imposes any obligation to pay any amount of money to the respondent.

Facts:

By a specially indorsed writ of summons, the respondent who was the plaintiff before that court claimed the sum of N27l,311.60k from the appellant as the defendant in that court being the sum payable under the bank guarantee dated 3rd May, 1990, taken out by Progressive Insurance Company Limited and filed in the Court of Appeal, Lagos Division, in consideration of the Order for stay of execution made by the Court of Appeal, (Lagos Division) of Appeal No CA/L/10M/90, in favour of the plaintiff/respondent sequel to the dismissal of the substantive appeal (i.e. Appeal No. CA/L/18/92) between Progressive Insurance Company Limited and Cyriacus Iwumune interest on the said sum from 14th March 1990 (the date of the judgment of the Court of Appeal), at the commercial rate of 45 % per annum until the judgment debt was fully paid and the sum of N500,000.00 (five hundred thousand naira), being general damages for breach of duty on the part of the defendant/appellant to honour its obligations to the plaintiff/respondent under the said bank guarantee were also claimed. The defendant, upon service of the plaintiff’s writ of summons and statement of claim, filed a Memorandum of Appearance and later filed a statement of defence. The plaintiff/respondent thereafter, filed a summons for judgment and a further-affidavit in support. The defendant/appellant, in opposition to the summons filed a counter-affidavit and a further and better counteraffidavit. The defendant/appellant took a further step by filing a motion on notice dated 16th September, 1994, praying for an order of court dismissing the plaintiff’s suit in its entirety.

After taking arguments on the application, the trial court dismissed the application.

Dissatisfied, the appellant has appealed to the Court of Appeal.