Alhaji Aminu Ibrahim V. Nigeria Universal Bank Ltd (2001)

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MAHMUD MOHAMMED, J.C.A.

This is an appeal against the judgment of the Kaduna State High Court of Justice sitting at Kafanchan and delivered by Mukaddas J. on 11/5/98. The respondent as plaintiff took out a writ of summons under the undefended list and claimed against the appellant as defendant before the Kafanchan Judicial Division of the Kaduna State High Court, the sum of N259, 448.67k, with 21% interest from 30/8/97 till judgment and 10% interest from the date of judgment being accumulated loans, overdrafts and interest thereon as at 29/8/97. When the undefended suit came up for hearing before the lower court on 25/2/98, there was no proof of service on the appellant who was the defendant and consequently, the matter was adjourned to 31/3/98 for service to be effected on the appellant.

When the case came up for hearing on 31/3/98, the appellant who was duly served, was represented by counsel who filed a motion dated 27/3/98 for extension of time to file and serve his notice of intention to defend the suit together with the affidavit of defence. As the appellant’s counsel was not ready to move the appellant’s motion on 31/3/98, at the instance of the appellant applicant, both the motion and the undefended suit were adjourned for hearing on 11/5/98. However on 11/5/98 when the matter came up for hearing as scheduled, only the respondent’s counsel was in court while the appellant was absent and not represented by counsel. There upon the undefended suit proceeded to hearing at the instance of the respondent’s counsel and judgment was entered for the respondent on the same date 11/5/98 with neither the respondent’s counsel nor the learned trial judge saying anything on the appellant’s motion for extension of time to file notice of intention to defend the suit which was also slated for hearing the same day.

The Defendant against whom judgment had been entered who is now the appellant before this court, aggrieved by that judgment, has now appealed against it to this court. The notice of appeal filed on 4/8/98 contains the following two grounds of appeal.

“FIRST GROUND

That the trial judge contravened the fundamental right of the Appellant to a fair hearing as entrenched in section 33(1) of the 1979 Constitution of Nigeria (as amended) and the rules of natural justice because he proceeded to hear and determined the suit without hearing the Appellant on his motion on Notice dated the 27th day of March, 1998 which is pending before the court.

PARTICULARS

(i) The appellant filed a motion on Notice dated the 27th day of March, 1998 seeking inter-alia an order for extension of time to file and serve NOTICE OF INTENTION to Defend.

(ii) That on 31st day of March, 1998 the court’s attention was drawn to the existence of the said motion on Notice.

(iii) That on the 11th day of May, 1998 the learned trial judge despite the pendancy of the said motion on Notice dated the 27th day of March, 1998 proceeded to enter judgment infavour of the respondent.

(iv) The said Motion on Notice dated the 27th day of March, 1998 was not struck out before judgment was entered infavour of the respondent.

GROUND TWO

That the judgment was against the weight of evidence.

Briefs of argument were duly filed and served by the parties before this appeal came up for hearing on 21/3/2001. In the appellant’s brief of argument, only one issue was distilled from ground one of the grounds of appeal while the omnibus ground of appeal No.2 was specifically abandoned by the appellant and consequently no issue for determination was framed from it. I shall come back to the effect of the abandonment of the omnibus ground of appeal by the appellant later in this judgment. Meanwhile the only issue for determination in this appeal arising from ground one of the appellant’s grounds of appeal is:-