African Continental Bank Plc. V. Cyprian Ezenwa (2003)

LawGlobal-Hub Lead Judgment Report

DAVID ADEDOYIN ADENIJI, J.C.A.

This is an appeal against the decision of Ekuma-Akama, J of the Abia State High Court, sitting at Aba, delivered on 21st October, 1996, giving judgment to the plaintiff/ respondent as claimed on the undefended list. The defendant/appellant being dissatisfied with the said judgment appealed against same filing 4 grounds of appeal in the process.

The claim of the plaintiff in the court of trial was for:
“(1) The sum of N572,585.08 (five hundred and seventy two thousand, five hundred and eighty five Naira, eight kobo) being pension and outstanding gratuity due to the plaintiff from the defendant.
(2) Interest on the said sum at the rate of 13% per annum from January, 1994, until judgment.
(3) Interest on the judgment debt at the rate of 10% per annum from the date of judgment, until fully paid.”

The facts of the case are that the plaintiff/respondent an erstwhile employee of the appellant/bank was retired from the service of the bank in 1994. The bank was said to have paid to the respondent the sum of N92,649.20 (Ninety-two thousand, six hundred and forty-nine Naira, twenty kobo) according to the respondent as part payment of the entire benefit of N667,234.28 (Six hundred and sixty-seven thousand, two hundred and thirty-four Naira, twenty, eight kobo) leaving a balance of N572,585.08 (Five hundred and seventy-two thousand, five hundred and eighty-five Naira, eight kobo), which the appellant was alleged to have refused to pay even in spite of demands by the respondent. When nothing was further forthcoming, the respondent filed the above claim in court with several documents attached in proof of his claim.

The appellant reacted by filing a notice of intention to defend the action with a request at the hearing that the matter be placed on the general cause list. The respondent opposed the move and urged the court to decide if there was any serious issue in dispute. The court after reviewing the facts before it concluded that the appellant had not shown that it had a defence to the claim and therefore gave judgment to the respondent per his claim with N2,000.00 costs in favour of the respondent as against the appellant. See page 32 lines 21-26.

The appellant’s counsel at the hearing of the appeal adopted his brief of argument. The respondent’s brief was taken as argued as the counsel was not present in court.

On his part, the appellant’s counsel distilled two issues from the 4 grounds of appeal filed thus;
(a) Whether the learned trial Judge was right in refusing to transfer the suit to the general cause list, when on a calm view of all the issues together with the procedure, there was need for him to have done so.
(b) Whether the learned trial Judge was right in entering judgment for the plaintiff on the ground that no defence on the merit was disclosed in the affidavit in support of the notice of intention to defend?

The respondent’s counsel on his part felt that the two issues boil down to one point, but the matter of procedure brought into issue No.1 should be discountenanced, as there was no ground filed for it.
To my mind, the respondent’s counsel observation was valid in that the two issues can always be rolled into one issue, more so when any finding on issue one would substantially determine issue 2.

The separation of the issues does not however, occasion any miscarriage of justice and even without the use of the word procedure the issue formulated can still stand and be understood.

On issue No.1 the appellant’s counsel stated that the issue dealt with grounds 1, 3, and 4 of the appeal. He argued that the trial Judge failed to follow the laid down procedure in Order 23 rules 1-4 of the Imo State High Court (Civil Procedure) Rules, 1988, while entering judgment for the respondent on the undefended list when there was no application ex parte to do so by the respondent, hence, there was no application for that method of disposing cases and there was no court order to place the suit on the undefended list. Counsel believed that the exercise was for that reason a nullity.

Counsel went on to say that failure to observe the procedure leading to such exercise was a fundamental error hence, the judgment ought to be set aside and the suit struck out. Counsel in this regard cited the cases of Cash Affairs Finance Ltd. & Anor. v. Inland Bank Plc. (2000) 5 NWLR (Pt. 658) page 568 and the case of Maley v. Habibullah Isah (2000) 5 NWLR (Pt. 658) page 651 at page 665.

In the alternative, counsel urged the court to hold, if it did not feel like striking out the suit and setting aside the judgment, that by the affidavit of the appellant, the case ought to be transferred to the general cause list. He pointed out that the pivot of the respondent’s case was exhibit ‘D’, which the appellant described as forgery and that exhibit ‘E’ was illegal. Fraud he said, required proof beyond reasonable doubt and this could be done only by oral evidence not by affidavit evidence. Counsel stressed that the facts contained in the appellant’s affidavit were such that called for resolution by the court, of the conflicting versions and this could be done only by evidence.

Counsel went on to say that paragraph 14 of appellant’s affidavit showed that the August, 1992, policy limited computation of gratuity to basic salary and leave allowance only, as against the respondent’s paragraph 16 which spoke of computation of his gratuity based on total emoluments namely basic salary, housing allowance, transport allowance and lunch subsidy and the respondent’s claim in his paragraphs 14 and 15 was that the sum of N92,649.20 (Nine-two thousand, six hundred and forty-nine Naira, twenty kobo) paid to him was only part payment to him while the appellant insisted that that was the total due to the respondent. These, counsel maintained, were serious issues requiring resolution by the court after taking evidence. He relied for this on Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) page 737; Falobi v. Falobi (1976) 9-10 SC page 5.

When two affidavits are in such conflict genuinely, it is the duty of the court to grant leave to defend the suit as a defendant would by then have shown that it has a defence on the merit or sufficient facts to entitle him to defend an action generally. Counsel cited SCOA Ltd. v. Bourdex Ltd. (1990) 3 NWLR (Pt. 138) page 380 at 388 and 389.