First Amalgamated Building Society Ltd. & Anor. V. Ibiyeye (2007)

LawGlobal-Hub Lead Judgment Report

JUMMAI HANNATU SANKEY, J.C.A.

This is an appeal against the decision of the Kwara State High Court sitting at Offa delivered by Kawu, J. on the 25th day of July, 2006. The Respondent herein, who was the Plaintiff at the trial Court, had claimed from the Defendants, now Appellants, as follows:

a) “The sum of N7,899,122.00 being sum due and payable to the Plaintiff on the principal sum advanced by the Plaintiff as moneylender to the 1st Defendant and personally guaranteed by the 2nd Defendant and interest thereon as at 14/10/2004.

b) Interest on the said sum of N7,899,122.00 at the rate of 10% per month from 15/10/2004 to the date of judgment and thereafter at the rate of 10% per annum until the judgment debt is fully liquidated.”

This suit was initially commenced at the lower court on the ‘Undefended List’. Upon being served the processes of Court, the Defendants filed a Notice of Intention to defend the suit supported by an affidavit attached to which were several exhibits. When the matter came up for hearing before the court, the Plaintiff’s Counsel conceded upfront that this was a matter that should proceed to full trial where evidence would be adduced, and so, the court transferred the matter to the ‘General Cause List’ for hearing. On the date set down for hearing, whereas the Plaintiff’s Counsel informed the Court that the parties had been unable to achieve an out of Court settlement, the Defendants’ Counsel, in the spirit of settlement, offered to pay the Plaintiff part of the claim to the tune of N2.1 million. On hearing this, the Plaintiff’s Counsel promptly applied for judgment to be entered for the Plaintiff on the sum admitted. At this stage, the Defendants’ Counsel vehemently opposed the application for judgment based on the fact that he had made the offer in the spirit of amicable settlement between the parties, and also in light of the defences raised in paragraph 21 of the Statement of Defence. He contended that entering judgment at this stage of the proceedings would amount to a denial of their right to a fair hearing in respect of those issues. Nevertheless, the learned trial judge went ahead to enter judgment thus:

“COURT/RULING: – I think this is an appropriate case where the court can exercise its power under Order 27 Rules 14(3) of the 2005 Rules of Court to give judgment in favour of the plaintiff as per an admission by the defendants.

Accordingly I give judgment to the Plaintiff in the sum of two million one hundred Thousand Naira (2.1 million) only, admitted by the defendant.

Case adjourned to 10/10/2006 for the balance of the Plaintiff’s claim.”

It is against this decision that the Defendants, being aggrieved, have now appealed. By their Notice of Appeal dated 28th July, 2006 and filed on the same date, the Appellants complain thus:

“GROUNDS APPEAL:-

(1) The learned trial judge erred in law when he assumed jurisdiction to entertain and actually granted the oral application of the Plaintiff’s Counsel for judgment in the sum of N2.1 million while acting under Order 27 Rule 14 (3) of the Kwara State High Court (Civil Procedure) Rules 2005. This error has occasioned a grave miscarriage of justice.

Particulars:

i. The learned trial judge acted under Order 27 Rule 14(3) of the Kwara State High Court (Civil Procedure) Rules, 2005.

ii. There was no motion on notice before the Court asking for judgment.