The Court of Appeal, Lagos Division has dismissed an appeal filed by Bi-Courtney limited challenging the ruling of Justice Adeniyi Onigbanjo (now retired) of the Lagos High Court over N500 million facility granted to the company by Aso Savings Limited.
The Appellate Court in its judgement delivered by Justice Obande Festus Ogbuinya held that ‘the appeal is bereft of any iota of merit’ and dismissed it accordingly.
The court in its unanimous decision also affirmed the decision of the lower court delivered on July 11, 2017.
According to court documents, sometime in 2009, Aso Savings Limited granted a credit facility of N500 million to the Appellant on certain terms and conditions.
The Appellant mortgaged its property, situate and known as No. 70 Alexander Avenue, Ikoyi, Eti-Osa Local Government Area, Lagos State (the property) as collateral for the facility.
The Appellant defaulted in repayment of the facility. In 2010, Aso Savings Limited respondent filed an action against the Appellant, in the lower court, registered as Suit No. LD/925/2010, for the foreclosure of the legal mortgage.
In response, the Appellant raised a preliminary objection to the suit. However, before the ruling on the objection, the parties reached an amicable settlement ‘which was reduced into terms of settlement.
On 20th June 2011, the terms of settlement were entered as consent judgment for the parties before Justice Morenike Obadina, which has generated tons of litigations.
The Appellant defaulted in obeying the consent judgment. As a result, Aso Savings Limited, in compliance with the consent judgment, sold the property to Abacus Estate Limited (second respondent) and put it in possession thereon.
Sequel to that, the appellant besieged the lower court, via an originating summons filed on 20th October 2016, praying for a declaration that pursuant to Order 5 Rule 1(1) of the High Court of Lagos State (Civil Procedure) Rules 2004 [which was in force as at the time Suit No. M/925/2010 was instituted], Suit No. M/925/2010 is a nullity.
It also prayed the court for an order setting aside and or nullifying the proceedings as well as the consent judgment.
However, Aso Savings Limited filed a preliminary objection, and urged the court to dismiss the suit for lack of jurisdiction among other reliefs.
Justice Onigbanjo in his Ruling delivered on July 11, 2017, upheld the preliminary objection and dismissed the suit for amounting to an abuse of court process.
Dissatisfied, the Appellant in it Notice of Appeal asked the court to allow the appeal and set aside the ruling of the lower court.
However, the 3-man panel, comprising of Justice Obande Ogbuinya (Presided), Justice Abubakar Umar and Justice Abdullahi Bayero dismissed the appeal.
In his lead judgement, Justice Ogbuinya held that the lower court did not trample on the Appellant’s sacrosanct right to fair hearing as to fetch the reprobation of the court.
The Court held “The appellant was properly heard. The lower court did not trample on the appellant’s sacrosanct right to fair hearing as to fetch the reprobation of this court.
“My noble Lords, for the avoidance of any ambiguity, it is important to assemble and synthesise the divergent resolutions and apportion their concomitant consequences on the appeal. I had resolved issue one in favour of the appellant and issues two and three against it and vice versa.
“Alas, the appellant only gained pyrrhic victory on the resolution of the issue one in its favour. The reason is this. The outcome of issues two and three, which went against it, overshadows and drowns the resolution of issue one and, ipso facto (by the fact itself) will define and shape the ultimate destiny and verdict in the appeal.
“On the whole, having resolved issues two and three against the appellant, the fortune of the appeal is obvious. It is bereft of any iota of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision (ruling) of the lower court, which was delivered on 11th July, 2017”
