March 29, 2024

A Final Written Address Filed Out Of Time Is Not Incompetent

Time for service or filing of processes between parties is technical in nature, thus, cannot render them incompetent

Avzat Intl Ltd & Anor V. Ecobank (Nig) Ltd (2018)
LPELR-44851(CA)
 

There are stipulations as to time frame within which certain acts are to be done in Court proceedings.

There will, undoubtedly, be instances where the party will be unable to comply with the time frame stipulated by the Rules of Court.

Now, the big question is: Does non-filing within the stipulated time render the process incompetent and incurably bad? BARKA, J.C.A., answering this question while delivering the leading judgment in Avzat Intl ltd & anor V. Ecobank (Nig) ltd (2018) LPELR-44851(CA) said “…But supposing the written address in contention was to have been filed out of time as contended, will that make the address incompetent, and therefore unusable? I do not think so”.

The learned Justice underscored his position when he said “I fail to agree with the learned counsel for the appellant that the failure of the respondent to abide with the stipulations of Order 39 Rule 16 of the rules of the lower Court, in the filing of the defendant’s final written address by a day, rendered the address incompetent in the circumstance, and the reliance of the lower Court on same to be damnified in the circumstance.”
Buttressing the position that filing out of time will not render a final written address incompetent, UGO, J.C.A, in his own contribution posited that “provision of the rules of Courts relating to time for service of processes between parties is purely technical in nature and for the convenience of parties so any failure in that regard is mere irregularity, and not nullity, which the Court can overlook, just like parties can also waive it.”
 
FACTS IN BRIEF
 
In the year 2008, Avzat International Limited (claimant/appellant- forthwith called “appellant”) – a company incorporated under the Nigerian law and dealing in Petroleum products, obtained an overdraft facility from Oceanic Bank Plc.,( now Ecobank Nigeria Ltd,) Ilorin Branch (the defendant/respondent- forthwith called “respondent”) in the sum of five million naira only (5,000,000.00) for a period of 180 days to finance her working capital. The loan was granted and accessed by the appellants.

Unfortunately, the appellants were unable to repay their indebtedness at the expiry of the 180 days.

Consequently, the Bank started mounting pressure on the appellant asking it to liquidate its indebtedness.

The appellants negotiated with the respondent through its officers that the total indebtedness of the appellants to the respondent be liquidated by paying the principal sum of five million naira. This, the appellants paid in one swoop.

Appellants were therefore surprised when in November, 2010 the respondent demanded the payment of outstanding indebtedness to the tune of five million two hundred and fifteen thousand eight hundred and seventy-five naira seventy-nine kobo; (5,215,875.79).

It was also contended by the appellants that having paid their full indebtedness as agreed between the parties, they were no longer owing. Appellants therefore demanded that their collateral deposited with the respondents be released to them.

They were however met with stiffer demands for payment by the respondents.

This was what led to the institution of the claim before the trial Court.
On the flip side, the respondents apart from denying the claimants’ claim and insisting that it never gave any authorization to anybody to negotiate the loan repayment; counterclaimed for the debit balance against the claimants which had grown to a whopping N11,478,393.32 (Eleven million four hundred and seventy-eight thousand three hundred and ninety-three naira thirty two kobo).

At the trial before the lower Court, parties called witnesses and tendered documents and at the close of trial, the trial Court dismissed the appellants’ claims and granted the respondent’s counterclaim.

Dissatisfied with the judgment of the trial Court, the appellants filed this appeal.
 

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