Victor Amede V. United Bank for Africa (2007)

LawGlobal-Hub Lead Judgment Report

UWANI MUSA ABBA AJI, J.C.A,

By a writ of summons and an affidavit in support of claim dated 15/01/2003, the Respondent herein as the plaintiff at the High Court, instituted an action in the Edo State High Court, Benin City against the Appellant as the Defendant herein claiming as follows:-

“(a) An order for the payment of the sum of N2,189,654:00 (Two Million, One Hundred and Eighty Nine Thousand, Six Hundred and Fifty Four Naira) being the amount standing to the debit on Account No. 601091242 as at 31/3/2002 due to Plaintiff from the Defendant by virtue of contract of Guarantee entered into between the parties on 3rd April 1989 at the request of the defendant in respect of the said account operated by Chief S.E. Okonofua, trading as Stesok Enterprises to secure overdraft facilities from the Plaintiff and which facilities the said Chief Okonofua and the defendant have failed, neglected and or refused to pay despite repeated demands by the Plaintiff within the jurisdiction of this Honourable Court.

(b) An order for the defendant to pay interest on the said sum of N2,189,654:00 (Two Million, One Hundred and Eighty Nine Thousand, Six Hundred and Fifty Four Naira) at the rate of 21% per annum with effect from 1st April, 2002 till judgment and at the rate of 10% thereafter till payment is realized.”

By a motion Exparte dated 15/01/2003, the Respondent applied to the trial court to set the matter down for hearing under the undefended list and to mark the writ of summons accordingly. These prayers were granted by the Honourable court on the 25/3/2003. By a memorandum of appearance together with a Notice of Intention to Defend, both dated 24/10/2003, the Appellants challenged the Respondent’s suit.

Arguments were canvassed by the parties on the 17/3/2004 and on the 29/7/2004, judgment was delivered wherein the Respondent’s claims were granted.

Being dissatisfied with the said judgment, the Appellant, filed an appeal to this court vide a notice and Grounds of Appeal dated 5th August, 2004 upon four (4) grounds of appeal. The Grounds of Appeal are hereby reproduced without their particulars:-

“(1) The learned trial Judge erred in law when he gave judgment in favour of the Plaintiff, based on an action that is clearly statute barred.

(2) The learned trial Judge erred in law when he ignored the provision of S.24(5) of the Limitation Law Cap. 89 Laws of Bendel State 1976 (as applicable in Edo State), which made an acknowledgment of any debt or other liquidated Pecuniary claim to bind only the acknowledgor and his successors but not any other person and also made an acknowledgment made after the expiration of the limitation period not to bind any successor on whom the liability devolves.

(3) In the alternative, the learned trial Judge erred in law when he entered judgment against the Defendant under the undefended list procedure, although the affidavit in support of notice of intention to defend the action clearly disclosed a bona fide defence on the merit.

(4) The decision is against the weight of evidence.”

In compliance with the Rules and Practice of this court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by S.O. Eimiuhi, Esq, learned counsel formulated two issues for determination of the appeal. The issues are:-

“(1) Whether the learned trial Judge was right when he held that the Respondent’s claim was revived by Exhibit ‘D’ and therefore not statute barred.

(2) If the answer to issue (1) above is in the affirmative, whether the learned trial Judge was right to have given judgment against the Appellant under the undefended list procedure despite the affidavit in support of notice of intention to defend, which prima facie disclosed a defence on the merit.”