Rhor and Lue Nigeria Ltd. & Anor V. Bank of the North Limited (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

The Appellants as defendants were sued by the Respondent who was plaintiff before the Abuja High Court of justice for a liquidated money demand under the undefended list on the 24th September 2002. Judgment was entered on the 16th June 2005 in favour of the Respondent, after striking out the name of the 2nd Defendant before the lower court. The Appellants not satisfied with the judgment of the Court have appealed to the Court of Appeal.

The Respondent through a motion on notice seeking leave cross-appealed.

FACTS BRIEFLY STATE

The Appellants on the 4th day of July, 2001 applied for a loan of N19 million from the Respondent sequel to the discussion they had with the Abuja Branch Manager of the Respondent. As a result of the discussion, Exhibit AEE2 attached to the Respondent’s affidavit in support of the writ of summons was written after the expiration of the said facility, the Respondent instituted this action under the undefended list. The Appellants filed their respective notices of intention to defend and affidavits in support. The Respondent filed a counter-affidavit to the Appellant’s notice of intention to defend. Both parties addressed the court based on their respective affidavits and written addresses filed. The trial court gave its considered ruling on the 16th day of June 2005 by refusing the appellant leave to defend the matter on the merit, thereafter judgment was entered in favour of the Respondent as per their claim.

The Appellants not satisfied with the ruling and judgment of the trial court, have appealed to this court by filing four grounds of appeal.

Learned counsel for the Appellants on their behalf filed on 18/1/06 an Appellants’ Brief and raised three questions which are:-

1. Whether the Appellants’ disclosed a defence on the merits that car warrant the matter be transferred to the general cause list or to be heard on the merits (Grounds 1, 2 and 3of the Notice of Appeal).
2. Whether the Respondent is right in charging interest after the exPir1tion of the tenure of the facility (Ground 4)
3. Whether the Honourable Court has the jurisdiction to entertain and assess the claim on interest in an undefended Suit (Ground 4).

The Respondent by a Brief titled RESPONDENT’S BRIEF AND CROSS APPELLANTS BRIEF OF ARGUMENT which was filed on 4/4/06, formulated three issues which are the following:-

(a) Whether the Appellants, have raised triable issues to warrant the transfer of this case to the general cause list.

(b) Whether the trial court was right in awarding judgment in favour of the Respondent despite the letter of domiciliation Exhibit CA1.

(c) Whether the trial court was right in awarding judgment to the Respondent under the undefended list despite the Respondents charging of interest after the tenure of loan.

The Respondent however had raised a Preliminary Objection to Issue 3 of the Appellant’s Brief which deals with the issue of the lower court assessing interest.

Learned counsel for the Respondent said from the grounds of appeal filed by the Appellants the issue of the lower court assessing interest never arose. That Issue 3 of the Appellants therefore did not emanate from the Grounds of Appeal and so go to no issue. He cited Kokoro-Owo & Ors vs. Lagos State Government & Ors (2001) 6 NSCQR 615 at 617; Ogunjumo vs. Ademola (1995) 4 NWLR (Pt. 389) 254.

Learned counsel for the Respondent stated on that Issue No 3 of the appellants’ Brief of argument should be struck out. He stated further that in the case they are overruled that it is submitted that the lower court did not assess interest in this case. That in determining this issue, it is important to note the following: