Alhaji Mohammed La’aro Balogun V. United Bank For Africa Limited(1992)

LawGlobal-Hub Lead Judgment Report

OMO, J.S.C. 

The respondent (as plaintiff) sued the appellant (as defendant) in the Kwara State High Court (Ilorin Division) claiming the sum of N24,103.53 being balance due on and unpaid on an overdraft facility granted to the appellant together with interest accruing on same until judgment is given, and an order that the judgment debt be paid at the rate of 13% per annum.

The parties duly filed their pleadings, the appellant’s pleading apart from a general traverse, being limited to two paragraphs in which he denied all the averments in the statement of claim (save an inconsequential one) and stated that “the defendant does not owe the plaintiff any Kobo whatsoever.:

After a hearing in which the appellant resolved at the end of the case of the respondent not to offer any evidence, the learned trial Chief Judge, in a reserved judgment, held that the respondent had failed to prove its case and dismissed same.

The respondent, who was dissatisfied with that judgment, appealed to the Court of Appeal where briefs were duly filed and oral arguments were presented. In its judgment the Court of Appeal allowed the appeal, set aside the judgment of the High Court and substituted same with an order of non-suit, solely on the ground, as stated by Maidama, J.C.A, in concluding his judgment that “In the case in hand, although the respondent totally denied the appellant’s claim, yet there was evidence which showed that the respondent was indebted to the appellant. That being the case, it seems to me that the scale of justice weighed more in favour of non-suit. On the facts of this case the respondent would not be entitled to judgment by dismissal of the appellant’s case. It was therefore wrong for the learned trial Chief Judge to enter such judgment.

Having regards to the circumstances of this case, I am of the Firm view that an order of non-suit will not be unfair or unjust to the respondent. ..

Against this judgment the appellant has appealed to this court relying on only one ground of appeal set out thus:-

“1. The learned Justices of the Court of Appeal erred and misdirected themselves in law in ordering a non- suit after holding that the plaintiff/appellant did not prove its case at the Ilorin High Court.

Particulars of error and misdirection in law.

i The proper order to make was a dismissal order as made by the High Court.

ii. The facts of the case are distinguishable from those in Yesufu v. A.C.B. Ltd. (1980) 1 – 2 S.C. 49 in that the defendant (appellant herein) had denied owing the plaintiff (respondent herein) any sum whatsoever.”

Only one issue for determination is also posed thereon, which appellant has stated in his brief to be –

“whether the High Court was right in dismissing the plaintiff’s case or that the Court of Appeal was right in ordering a non-suit”

Appellant’s counsel’s submissions may be summarised as follows:-