Joel Okunrinboye Export Co. Ltd V. Skye Bank Plc (2009)

LAWGLOBAL HUB Lead Judgment Report

W.S.N. ONNOGHEN, JSC 

This is an appeal against the judgment of the Court of Appeal, Holden at Benin City in appeal NO.CA/B/237/99 delivered on the 9th day of December, 2002 in which the court dismissed the appeal of the appellant against the judgment of the High Court of Ondo State, Holden at Owo in Suit NO. HOW/35/96 delivered on 12/10/98 against the appellants who were the defendants before that court.

By a writ of summons later entered for hearing under the undefended list procedure, the plaintiff/respondent claimed against the appellants jointly and severally the following reliefs:-

“(1) The sum of N51,425,791.84 (Fifty-one Million, Four Hundred and Twenty-five Thousand, Seven Hundred and Ninety-one Naira, Eighty-four Kobo) being the outstanding debt balance (principal plus interest) of the credit loan facilities granted the 1st defendant at its own request for its cocoa produce business purpose between 1993-1995 cocoa sessions which credit loan facilities the 2nd to 4th defendants stood as guarantors for repayment and despite repeated demands, the 1st defendant and its said guarantors have failed, refused and or neglected to pay same.

(2) Interest at 21% per annum from the date of writ until judgment and thereafter at 10% per annum until judgment debt is finally liquidated.

(3) Other remedies available to the plaintiff in law and or equity as the justice of this case demands”.

The suit was entered under the undefended list following the grant of an application to that effect by FALODUN J on the 2nd day of July, 1996. The return date was fixed for 6th August, 1996 which incidentally fell within the legal vacation of the court and was consequently adjourned to 30th October, 1996. On the 11th day of July, 1996, the defendants filed a Motion on Notice praying the court to set aside the order entering the suit under the undefended list and the dismissal of the suit which motion was, after many adjournments at the instance of the defendants/applicants, withdrawn by them on 30th June, 1997 – almost one year after the suit was entered under the undefended list and the filing of the motion in question. On the 30th day of June, 1997 the defendants filed another motion on notice, this time seeking extension of time within which to file their notice of intention to defend together with an affidavit disclosing their defence to the action which application was adjourned to the 29th day of July, 1997. On the 29th day of July, 1997, the defendants filed another motion for leave to file their memo of appearance out of time which motion was eventually struck out by the court and the case adjourned to 23rd October, 1997 for hearing.

On the 23rd day of October, 1997 a new counsel was engaged by the defendants in the person of Prince L. O Fagbemi, SAN who proceeded to file a motion on notice challenging the competence of the suit and a Notice of Intention to defend the suit both dated 23/7/97 which applications necessitated the adjournment of the suit to the 11th day of December, 1997. Following the engagement of the trial judge on a national assignment the court did not sit until 13th July, 1998 when the suit was adjourned to 28th September, 1998 as the learned senior counsel for the defendants was not in court. When the case was called for hearing on 28/9/98 learned counsel for the defendants withdrew his appearance for the defendants as his brief had not been perfected and the matter was again adjourned to the 12th day of October, 1998 for hearing in the presence of all the parties to the action. The defendants were warned by the court to look for another counsel before the adjourned date see page 26 of the record.

When the case came up on the 12th day of October, 1998 for hearing all the parties were present but the defendants were not represented by counsel despite the warning of the court. The defendants, however wrote a letter seeking an adjournment of the case which application was opposed by the learned counsel for the plaintiffs resulting in the trial judge refusing the application for adjournment and proceeding to hear the learned counsel for the plaintiffs after which the court entered judgment in favour of the plaintiffs as endorsed in the writ of summons earlier reproduced in this judgment but with 5% post judgment interest per annum. The defendants were not satisfied with that judgment and consequently appealed to the Court of Appeal which dismissed their appeal and affirmed the judgment of the trial court resulting in the instant further appeal to this court.

In the appellants’ brief of argument deemed filed on the 28th day of February, 2005 and signed by Olusegun S. Aderigbe Esq the following six issues have been submitted to the court for the determination of the appeal.

“1. Whether the court below was right when it struck-out as incompetent Ground 1 of the appellants notice of appeal before it, on the premises that the ground alleged both error and misdirection in its particulars considering the adverse effect of this decision on the appellants GROUND 3A.

Whether the failure of the appellants to move their motion for extension of time within which to file appellants’ notice of intention to defend can amount to an abandonment of the already filed Notice of Intention to defend with its affidavit in view of Order 23 Rules 1 – 5 of the High Court Civil Procedure Rules, 1987 of Ondo State. GROUND 3B

Whether the consideration of the respondent’s issue in determining the appeal after holding that the appellants issue are incompetent is proper and if not, has any miscarriage of justice been occasioned? GROUND 3C.

Whether the lower court was right in holding that no duty was imposed on a judge to evaluate and resolve affidavit evidence before entering judgment in matters under the undefended list procedure GROUND 3D.