African Continental Bank Plc V. Nwanna Trading Stores (Nig.) Ltd. (2006)

LawGlobal-Hub Lead Judgment Report

ADEKEYE, J.C.A.

The appeals CA/A/113/2001 and CA/A/189/2003 emanated from the suit No NSAC/MIN/169/95 at the High Court of Justice Niger State Minna Judicial Division. The appeal CA/A/113/2001 is against the judgment delivered on 2/9/97.

While the appeal No CA/A/189/2003 is against the ruling delivered on the 12th of May 2003. Both appeals were consolidated by an order of this court made on the 6th of April 2005. The two appeals are off-shoots of the same suit between the same parties and in respect of the judgment in the suit and the execution of the judgment thereafter respectively.

Facts

In the appeal CA/A/113/2001 – the appellant African Continental Bank Plc, as plaintiff in suit No NHS/MIN/169/95 had a banker and customer – relationship with the respondent Uwanna Trading Stores (Nig.) Ltd. at its Branch Office in Minna-Niger State.

The respondent maintained a current account No 20027 with the appellant at this branch – whereupon it was approved an overdraft facility to the tune of N200,000 by the appellant. The respondent defaulted in the maintenance of the account and was indebted to the bank to the tune of N119,711.90k (One hundred and nineteen thousand, seven hundred and eleven naira, ninety kobo). By an application for issuance of a writ of summons on the undefended list, the appellant, as plaintiff commenced a debt recovery suit. In view of the pleadings later filed, the case was removed to the general cause list. The amount reflected on the appellants writ of summons was N199,711.90 as at 31/5/95. Interests thereon at 21% per annum until judgment and 10% per annum until judgment debt is fully paid.

The claim was predicated on a sum of N200,000 granted and allegedly fully drawn by the defendant/respondent. Respondent filed a counter claim. During the course of trial before the lower court, the appellant examined and cross-examined one witness. The trial court struck out the case of the appellant for lack of diligent prosecution following an application to that effect by the respondent’s counsel. The respondent led evidence on the counter claim, parties submitted written addresses. In a considered judgment delivered on 2/9/97, the lower court, dismissed the appellant’s suit No 17/3/97, and gave judgment to the respondent on the counter-claim. Dissatisfied with the decision of the court – the appellant appealed to this court. Records were settled and briefs of argument exchanged 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 deemed filed on 21/5/02 and the appellant’s reply brief filed on 11/4/05. Six issues for determination were disseminated from the six grounds of appeal filed as follows:

(1) Was the trial court right to, on 2/9/97 suo motu dismiss appellant’s suit which suit same court had on 17/3/97 struck off and which has not been relisted, thus no longer before the court and without asking parties to address it on it?

(2) The counter-claimant having on her affidavit evidence admitted committing banking fraud against the appellant, was trial court right to have still heard the counter-claim, and institution of justice to further the counter-claimants base action?

(3) The appellant’s PW1 having given copious, credible and convincing evidence capable of sustaining the appellant’s suit, was the trial court right to, on 17/3/97 strike out the appellant’s case instead of closing her case and asking defendant to open her defence.

(4) Whereas appellant has filed both reply and written address to the counter-claim was the court right to assume that the counter-claim was undefended and thereby entered default judgment against the appellant.

(5) Was there any cause of action and even evidence to support the judgment given in respect of the counterclaim?

(6) Whereas the appellant/judgment debtor still has movable assets worth over N651,360.00 in Niger State, was the trial court proper to allow the attachment and sale of the appellant’s banking premises without first attaching the movable property as well as comply with the statutory conditions.

The respondent raised an objection in respect of grounds 2 and 6 of the grounds of appeal. Two issues for determination were distilled from the remaining four grounds as follows: