The Lagos division of Court of Appeal, has dismissed an appeal filed by Bi-Courtney Limited, challenging the ruling of a Lagos High Court on a N500 million loan granted to the company by Aso Savings Limited and Abacus Estate 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 it’s unanimous decision also affirm the decision of the lower court delivered by Justice Adeniyi Onigbanjo (now retired), on July 11, 2017.
According to court documents sighted by this medium, sometime in 2009, Aso Savings Limited granted a credit facility of N500 million to Bi-Courtney Limited, on some terms and conditions.
The Appellant, Bi-Courtney Limited had mortgaged its property, situate and known as 70 Alexander Avenue, Ikoyi, Eti-Osa Local Government Area, Lagos State (the property) as collateral for the loan.
The appellant, Bi-Courtney Limited however defaulted in repayment of the facility.
In 2010, the respondent, Aso Savings Limited, filed an action against the Bi-Courtney Limited, 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. before the ruling on the objection was delivered, both parties have reached an amicable settlement ‘which was reduced into Terms of Settlement, which was entered on June 20, 2011, as Consent Judgment before Justice M. O. Obadina, which has generated tons of litigations.
However, the Appellant, Bi-Courtney Limited, 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 had 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 Bi-Courtney Limited’s suit, for amounting to an abuse of court process.
Dissatisfied with Justice Onigbanjo’s ruling, Bi-Courtney Limited, approached Appeal Court in it Notice of Appeal asked for setting 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 delivered on June 27, 2023, Justice Ogbuinya held that the lower court did not trampled 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”
Other members of the panel concurred with Justice Ogbuinya’s decision.
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