Samuel Tele Onadeko V. Union Bank of Nigeria Plc. (2004)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

T

his is an appeal against the judgment of Ogun State High Court of Justice – Ijebu-Ode Judicial Division, delivered on the 6th of July, 1999. This judgment emanated from suit No.HC/119/97 which was heard under undefended list and the lower court awarded judgment to the respondent in the sum of N482,614.16 with interest at the rate of 21% per annum from the 1st of November, 1997, until the date of judgment and thereafter, interest at the rate of 10%, until final liquidation of the debt. The plaintiff before the lower court, the Union Bank of Nigeria, stated in affidavit sworn to by Tajudeen Adesegun Ajibade, an appraisal officer of the bank that the defendant – Samuel Tele Onadeko, was a customer at Ijebu-Ode branch. In the course of their bank and customer relationship – the defendant took a loan of N30,000.00, sometime in 1983. The plaintiff secured the loan by mortgaging its landed property at No.2 Oriwu Street, Atikori, Ijebu-Igbo Ogun State. A deed of legal mortgage was executed by the parties on the 13th of September, 1984, specifying the modalities for the repayment of the loan. The defendant failed to comply with the terms of the mortgage following which the plaintiff attempted to foreclose and sell the mortgaged property. The defendant prevented the bank from taking this line of action by obtaining an order of injunction at the High Court of Justice Ijebu-Igbo Division. On the 25th November, 1997, the plaintiff filed an action for the recovery of the loan granted to the defendant. The loan and interests on the 31/10/97 stood at N482,614.16. The plaintiff filed an affidavit in support of the summons, and a statement of claim. Prior to this, the defendant issued a cheque for N50,000.00 as part-payment but the cheque was dishonoured. The suit in which the defendant obtained the order of injunction was struck out. The plaintiff before the trial court exhibited along with his affidavit in support of the summons documents like the deed of legal mortgage as exhibit A, respondent’s covering letter returning the dishonoured cheque and the cheque as exhibits B and B1, the proceedings in suit No.HCB/12/91 struck out by court as exhibit C. The plaintiff maintained in the claim that the appellant has failed and neglected to pay the debt in spite of repeated demands. The defendant did not dispute being a customer of the plaintiff at its Ijebu-Ode branch, and that he obtained a loan of N30,000.00 in 1983, secured on his landed property in Ijebu-Igbo. The defendant also admitted instituting the action by which he obtained an order of injunction in the Ijebu-Igbo High Court. He denied not receiving statements of account or demand notice from the bank, neither was his indebtedness to the bank up to N482,614.16. The defendant filed a counter-affidavit in reply to the plaintiff’s affidavit. He did not deny issuing the cheque exhibit B in an attempt to settle the amount outstanding on the loan. It is his contention that this matter was placed on the undefended list in the High Court of Ijebu-Ode and was disposed in that manner. Furthermore on the day the action was heard – he was not present in court and his counsel applied to withdraw his appearance. The court granted the request of his counsel and proceeded to hear the case. He was not served with hearing notice notifying him about the case. The trial court proceeded to take the case as undefended and granted judgment and interests against him for a sum of N482,614.16 being the balance of a loan as at 31/10/97, plus 21% interest on the said sum from 1/11/97, until judgment and thereafter at 10%, until the whole debt is paid – plus N1000 costs in favour of the plaintiff against the defendant.

The defendant being aggrieved by the judgment of the trial court filed his notice of appeal on 8/6/2001, pursuant to the order of this Court made on 7/6/01. Parties thereafter exchanged briefs in accordance with the Rules of the Court of Appeal, 2002.

At the hearing of this appeal – the appellant adopted and relied on the appellant’s brief filed on 21/1/03 and the appellant’s reply brief filed on 29/4/03. The respondent adopted and relied on the respondent’s brief filed 15/2/03.

In the appellant’s brief three issues were settled for determination as follows:

(1) Whether the plaintiff’s claim was statute-barred, and if so what order should be made by the lower court.

(2) Whether plaintiff was entitled to judgment upon the processes filed by them in the lower court.

(3) Whether the hearing in the lower court was conducted in accordance with the principles of fair hearing.

The foregoing relate to the grounds of appeal filed by the appellant. The respondent in its brief settled two issues for determination as follows:

(1) Whether the claim of the respondent before the lower court was statute-barred.

(2) Whether the lower court was right to have adopted the procedure it did at the trial before awarding judgment to the respondent.

This court shall adopt the issues formulated in the appellant’s brief for the purpose of this appeal.

The respondent filed notice of preliminary objection on 18/2/03 whereupon it submitted for determination as follows-