Benbok Limited V. First Atlantic Bank Plc. (2007)

LawGlobal-Hub Lead Judgment Report

BODE RHODES-VIVOUR, J.C.A .

This appeal originates from the Judgment of Ishaq Bello, J. sitting at Abuja High Court in Suit No. FCT/HC/CV/588/03 delivered on the 25th of April 2005.

In the Court below the appellant (as the plaintiff) claimed in paragraph 26 of his Statement of claim against the respondent (as the defendant) as follows:

”26. Whereof the Plaintiff claims against the defendant N14,849,506.10 being the balance of money deducted from plaintiff’s account under the different names after the expiration of the bonds with effect from on or about 26/1/02 plus 14% interest from 26/1/02 to the date of final liquidation of the said sum.

After the Plaintiff filed and served his pleadings on the defendant, the defendant failed to file his statement of defence within time, and so the defendant filed a Motion for extension of time to file and serve its statement of defence and to deem as properly filed and served the said statement of defence.

The defendant abandoned the Motion.

The proceedings of the High Court, Abuja on 21/10/03 are very important. On that day the plaintiff was represented by S. Lanre. The defendant was absent and unrepresented. The proceedings went as follows:

Plaintiff’s Counsel: The Defendants have been absenting themselves thus neglecting their Motion which intends to seek extension of time within which to file statement of defence. We ask that the Motion be struck out. Thereafter we ask for a date for hearing.

Court: RULING:-.

The Motion as filed by Defendants is hereby struck out for want of prosecution. Adjourned to 25/11/03 for hearing as suggested by Plaintiff’s Counsel. Hearing Notice ordered.

The Ruling was signed by the Presiding Judge. The proceedings referred to above are on pages 41 – 42 of the Record of Appeal.

The Plaintiff gave evidence and was cross examined by the Counsel for the defendant. Thereafter a Sole witness gave evidence for the defendant, he was also cross examined by the plaintiff’s counsel. Twenty documents were tendered and admitted in evidence as Exhibits.

In his Judgment the learned trial Judge dismissed the appellant’s claim holding that the plaintiff has failed to establish his claim upon preponderance of evidence as required. The Judgment relied on the Statement of defence that was struck out by the Court in its Ruling delivered on 21/10/03 (See page 42 of the Record of Appeal). It is very clear the learned trial Judge relied on the statement of defence which he struck out on 21/10/03 because in the opening paragraphs of his lordship’s Judgment on page 63 of the Record of Appeal his lordship said:-

“The Defendants denied liability to the Plaintiff’ claim. Pleadings were thus exchanged and issues joined inter se.”