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CaseLaw

Umanah V. NDIC (2016) CLR 7(o) (SC)

Judgement delivered on July 1st 2016

Brief

  • Preliminary objection
  • Preliminary objection and Notice of motion – Relationship between
  • Grounds of Appeal - Effect of where incompetent and issues formulated on such
  • Appeal as of right
  • Leave to appeal
  • Section 233(2)(a) of the Constitution
  • Section 233(3) of the Constitution
  • Section 233 of the Constitution
  • Section 233(2) of the Constitution
  • Order 2 Rule 9 of the Supreme Court Rules
  • Order 2 Rule 5(3) of the Federal High Court (Civil Procedure) Rules 2000

Facts

This is an appeal from the Judgment of the Court of Appeal, Lagos Division, delivered on 9 February 2005 in appeal No. CA/L/52/0202 which upset the judgment of a Federal High Court, Lagos Division, delivered on 1 November, 2001 in Suit No: FHC/L/FB/2000. The 1st Respondent obtained credit facilities amounting to fifteen million naira (N15m.) from the plaintiff. The sum was guaranteed by the 2nd respondent. The plaintiff's claim is for recovery of the debt of 15m.

On 2 May, 2001 the 2nd respondent filed a motion on notice seeking an order of Court striking out his name from the suit. The 2nd respondent supported his application with a 13 paragraph affidavit and a further affidavit of 12 paragraphs with annexures OA, A1 and OA2. The plaintiff did not file a counter affidavit. The motion on notice became necessary because the 2nd defendant was of the view that he had repaid above the guaranteed sum of N15m, and so his liability should be discharged. The issue considered by the learned trial judge was whether the 2nd respondent as guarantor of the principal debt should be discharged at this stage.

After hearing submissions from counsel and examining affidavits and annexures the Court granted the application. Miffed by the said ruling, an appeal was lodged at the Court of Appeal which allowed the appeal and set aside the ruling of the trial Court. This is a further appeal to the Supreme Court.

Respondent raised a preliminary objection to the Appellants grounds of appeal on the ground that the three ground of appeal are based on grounds of mixed law and fact no leave of either the Court of Appeal or the Supreme Court was obtained as required by Section 233 of the Constitution.

Issues

The Court considered the merit of the preliminary objection....

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