Ifeanyichukuwu Trading Investment Ventures Ltd. & Anor V Onyesom Community Bank Ltd (2015)

LAWGLOBAL HUB Lead Judgment Report

OLUKAYODE ARIWOOLA, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Enugu Division delivered on the 28th day of October, 2004 Coram: Galadima, Adekeye, JJCA (as they then were) and Mika’ilu, JCA.

The appellants herein were the defendants/appellants at the courts below, while the respondent was the plaintiff/respondent. They shall therefore henceforth be referred to as appellants and respondent respectively.

The respondent had commenced an action before the trial High Court, Onitsha under the Undefended List. It had claimed, as endorsed on the Writ of Summons, as follows:

“N10,080,093.18 (Ten Million, Eighty Thousand, Ninety-Three Naira, Eighteen Kobo) with interest at the rate of Twenty-One per centum from 1st day of September, 2001, up to the date of judgment and at the rate of five per centum per annum”

Upon consideration of the respondent’s application for the issuance of the specially endorsed Writ of Summons, the writ was so issued and marked as Undefended. It was then ordered to be served on the appellants and commanded as follows:

“…that if you dispute the claim, you shall not less than five days before the day fixed for hearing, file in the registry of the court, the original and copies for service on the plaintiff, a notice that you intend to defend the suit, together with an affidavit setting out your defence.”

The suit was accordingly set down for hearing on Thursday the 16th day of May, 2002. The appellants were further notified as follows:

“That if there be no notice to defend the suit or if there be such notice but the court is not thereby satisfied that there is a triable issue, the plaintiff may proceed and judgment may be given in your absence or the insufficient notice notwithstanding.

Dated this 18th day of April, 2002”

See; page 1 of the record of appeal.

Subsequently, on the 15th day of May, 2002, (a day before the return date), the appellants filed an application before the trial court seeking an order striking out the suit on the ground that it was premature, in that no “Demand Notice” was given by the plaintiff to the defendants before instituting the said action.

The respondent filed a counter affidavit to which various documents were attached including Letters of Demand and notification of balance in the defendants’ overdraft account. When the application came up for hearing on 16/5/2002, the court was informed by the plaintiff’s counsel that the defendants had approached the plaintiff for settlement out of court. Upon confirmation by the defendants’ counsel, the court adjourned the application to 2nd July, 2002 for report of settlement or for hearing of the suit under Undefended List. The defendants’ application suffered couple of adjournments until 11th December, 2002 after the settlement failed. On the 23rd January, 2003, the court duly considered the plaintiff’s application for an order striking out the suit and same was dismissed. As there was no notice of Intention to defend the suit by the appellants, the court proceeded to hear the suit under the Undefended List.

As clearly shown on the record, both parties were represented in court by counsel and they made respective submissions on the case. The matter was adjourned for ruling or judgment to the 30th January, 2003.