Chrisdon Industrial Co. Ltd. & Anor. V. African International Bank Limited (2002)

LawGlobal-Hub Lead Judgment Report

UBAEZONU, J.C.A.

By a suit filed under the undefended list cause on 2nd September, 1990 at the High Court of Onitsha Judicial Division in Anambra state of Nigeria, the respondent claimed against the appellants jointly and severally as follows:

1. the sum of N26,470,327.30 being principal sum plus interest as at 31st July, 1998 and
2. 25% interest per annum on the judgment debt from 1st August, 1998 until final liquidation of the entire debt.
3. Costs.

By the rules of court under which the suit was filed, the claim was supported by an affidavit of 7 paragraphs showing the circumstances of the claim and attaching a number of exhibits. The claim arose from overdraft/loan facilities granted by the respondent to the 1st appellant guaranteed by 2nd appellant.

On the 3rd December, 1998, the appellants filed a notice of intention to defend under Order 24 rule 9 of the High Court Rules of Anambra State, 1988. Accompanying the notice is an affidavit of 18 paragraphs to which was attached a number of exhibits. On 20th May, 1999 the matter came up for hearing at the High Court. The proceeding for hearing is as set out at page 43 of the record. Judgment was given for the plaintiff as claimed for N26,470,327.30 with 25% interest and N5000 costs in favour of the respondent. Dissatisfied with the said judgment, the appellants have appealed to this court. The parties have also filed their respective briefs.

In their brief, the appellants formulated 2 issues for determination as follows:-

“1. Was the lower court right to have proceeded with hearing the suit without considering the application for adjournment?

2. Did the appellants’ notice of intention to defend, raise a triable issue so as to entitle the appellants to be let in to defend?”

As can be seen from the brief, the first issue relates to the alleged failure of the lower court to consider an application for adjournment as contained in the counsel’s letter dated 19th May, 1999. Learned counsel for the appellants conceeds that it is within the discretion of the court to grant or refuse an application for adjournment but says the discretion must be exercised judicially and judiciously. In the instant case, counsel submits, the lower court wholly disregarded the application. Thus, the appellants were shut out from arguing their case. The case of Obomhense v. Erhahon (1993) 7 NWLR (Pt.303) 22 at 47 was referred to and relied upon.

The second issue complains of the judgment of the lower court which says that the appellants’ notice of intention to defend does not show a “defence on the merit” it is argued that the decision is wrong in the light or face of material conflicts in the affidavits of the parties. Moreover, the lower court in no where in its judgment did it consider the defence which it found to lack merit. The court did not evaluate the affidavit evidence before its learned counsel therefore submits that there was no “hearing” as required by the rules of court – refers to Azumi v. Pan African Bank Ltd. (1996) 8 NWLR (Pt.467) 462 at 472.

It is submitted that if the lower court had considered the affidavit of both parties, it would have been satisfied that the notice of intention to defend had made out a triable issue.

It is not in issue, the appellants argue that the appellants owe the respondent a certain sum of money the issue to be resolved by the court was how much the appellants owe the respondent. There was a serious doubt as to the sum of N13,019,400.22 which the respondent debited to appellants’ account as commissions, fees and other charges. The lower court overlooked the matter. Moreover, the appellants had instituted an action against the respondent challenging their indebtedness to the respondent. The appellants submit that having regard to all the circumstances of the case, it cannot be said that the appellants have not made out a triable issue.

It is further contended that the undefended list procedure does not allow the court to go into the merits of the case on affidavits. What the court had to decide was whether there was a triable issue to go before the court. – See UNN v. Orazulike Trading Co. Ltd. (1989) 5 NWLR (Pt.l19) 19 at 31; Jipreze v. Okonkwo (1987) 3 NWLR (Pt.62) 737 at 744; Military Government of Nigeria v. Sani (1990) 4 NWLR (Pt.l47) 688 at 699;. Ezuma v. Nkwo Market Community Bank Ltd. CA/E/94/99 delivered on 27th April, 2000 (unreported); Co-operative & Commerce Bank (Nigeria) Ltd. v. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt.651) 19.

The respondent also filed a brief of argument and therein formulated 3 issues for determination thus:

“(a) Did the failure of the trial court to grant an adjournment breach the rule of fair hearing as to cause a miscarriage of justice in the absence of any such application for an adjournment?

(b) Was the trial court wrong in entering judgment without much ado after seeing the various written admission (sic) of the respondents (sic) claim by the appellant in