Cleson Investment Limited v. Unity Bank Plc (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA (Delivering the leading judgment)

This is an appeal against the judgment of the Federal Capital Territory delivered by Hon. Justice D. Z. Senchi as he then was on December 16th 2015, wherein claims 1, 2 and 3 of the respondent/plaintiff were granted.

At the court below, the respondent under the Undefended List Procedure sought the following reliefs against the appellant:

“1. The sum of N82,053,349.64 only being the sum owed by the defendant as at 31st March, 2014.

2. Interest on the said amount at the rate of 28% per annum from 31st March, 2014 until judgment is delivered.
3. 10% interest on the judgment sum from the date of judgment until judgment debt is liquidated.
4. Cost of this action.

The brief gist of the instant appeal is that the appellant took a loan of fifty million (N50,000,000.00) naira from the respondent and according to the appellant the interest rate was above the Central Bank’s approved rate for banks and financial houses and the respondent notwithstanding further increased it.

That there was a dispute between both parties in that regard though the appellant had paid some part of the loan but the respondent commenced the suit at the court below as earlier stated under the undefended list procedure and judgment therein delivered which was in favour of the respondent culminated into this appeal.

The notice and nine (9) grounds of appeal were filed on December 18th 2015 and the following reliefs are being sought:

“An order that the lower court lacked jurisdiction to determine and entertain the matter and allowing the appeal setting aside the judgment of the trial court and dismissing/ striking (sic) out the suit.”

Parties filed and exchanged briefs of argument. The appellant’s which was settled by Emmanuel Esene, Esq. was filed on April 4th, 2016 and deemed as properly filed and served on March 16th, 2022. The respondent’s filed January 19th, 2023, settled by Dr. Gospel Adams, Esq. was deemed as properly filed and served on June 6th, 2023 to which the appellant filed a reply on January 31st, 2023.

Six (6) issues formulated by the appellant

“1. Whether the judgment of the lower court is not a nullity considering that the respondent’s writ of summons upon which the judgment of the trial court was based were neither issued, prepared nor signed by a legal practitioner whose name is on the roll of legal practitioners at the Supreme Court of Nigeria (Ground 1).

2. Whether the trial court was right to assume jurisdiction on the matter bordering on interest rate under the undefended list (Ground 2).
3. Whether the lower court was right when he held that the appellant’s notice of intention to defend does not disclose any defence (Grounds 3, 4, 5).
4. Whether the lower court was right when he held that the respondent’s counter-affidavit deposed to by Agu Obed Okwukwe (The respondent’s solicitor) on 17/2/2015 to respond to the appellant’s motion on notice dated 1/12/2014 did not offend section 115 of the Evidence Act and unprofessional (Ground 6)
5. Whether the lower (sic) was right when he decided that the appellant’s defence of illegality will not avail him (Ground 7)
6. Whether the lower court erred in law when he held that the appellant resolved to obtain a loan whereas the board resolution of the appellant exhibited by the respondent was not addressed to him and was not mentioned in the said board resolution (Ground 8).

Appellant’s submission

The learned counsel for the appellant submitted that since the instant case was commenced by a writ of summons issued by the law firm of Zaitun Chambers and not a legal practitioner, the proceedings and judgment entered are all a nullity as there was no name of a legal practitioner on it in accordance with sections 2(1) and 24 of the Legal Practitioners Act, therefore, the court lacked jurisdiction. In support he cited the cases of FMBN v. Olloh (2002) 30 WRN 1; (2002) 4 S.C (Pt. 110) 177, Kraus Thompson Org. v. NIPPS (2005) 10 WRN 127; (2004) 5 S.C (Pt. 1) 16, Dada v. Dosumu (2006) 50 WRN 1; (2006) 12 PNJSC 115 and Okafor & Ors. v. Nweke & Ors. (2007) 13 S.C (Pt. 11) 57.

He submitted that a claim as herein which was of interest on the principal sum where there was no agreement between the parties ought not to have been taken under the undefended list procedure which by its very nature is for liquidated sum, an amount previously agreed by the parties.