Muraina Olalekan V. Ifedapo Microfinance Bank Ltd. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ALAGOA, J.C.A. (Delivering the Leading Judgment)

In the High Court of Justice of Oyo State of Nigeria, holden at Saki, the Respondent as plaintiff brought an action under the Undefended List claiming the following reliefs –

1. The sum of Six Hundred and Nineteen Thousand, Four Hundred and Ninety Seven Naira, Thirty Seven Kobo (N619,497 ’37) only being outstanding principal sum, interest and bank charges of credit facility as at the 31st May, 2006 granted to the defendant by the plaintiff which had remained unpaid despite repeated demands.
2. Interest at the rate of 21% monthly on the above indebtedness with effect from June 2006 until judgment.
3. Interest at the rate of 10% on the judgment, debt until its liquidation.

By an exparte application dated the 22nd June, 2006 and filed on the 28th June, 2006 the Respondent (then plaintiff) sought for leave to issue the writ of summons in the suit and for an order transferring the suit to the Undefended List and to mark the writ of summons accordingly. This application was granted on the 13th July, 2006 and a return date was fixed for the 24th July, 2006 by the trial Judge.

When the suit came up for hearing on the 24th July, 2006, parties were present as borne out by page 35 of the Record of appeal’ Respondent’s Counsel drew the attention of the Court to the fact that the suit was one under the undefended list and that no Notice of Intention to defend the suit had been filed and asked that judgment be entered accordingly in favour of the Respondent. The learned trial Judge after stating the claim before the court went further to state as follows at pages 35 and 36 of the Records,

“On the 13th July, 2006, this suit was placed on the undefended suit (sic) after considering the plaintiff’s application for same. The Return date was fixed for 24/7/2006. Up till the time of writing this judgment the defendant has not filed any Notice of Intention to defend coupled with affidavit exhibiting defence on the merit and thereby conforming to Order 21(4) of the Rules which stated thus:

’23(4) Where any defendant neglects to deliver the Notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit and judgment given thereby without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”‘

The learned trial Judge went on further to state as follows:

“The Defendant has shown that he has no defence hence the plaintiff is entitled to judgment as stipulated by the order quoted above. Judgment is hereby awarded in favour of the plaintiff against the defendant for the sum of N619,497.37. 10% interest per annum on the judgment debt of N619,497.37k is also granted to the plaintiff from today when judgment is being delivered until final liquidation of same. Leg 2 of the claim having been withdrawn same is hereby struck out. This shall be the judgment of this court. Chief Siyanbola asks for N6,000.00 cost out of which the court expenses is N3,200.00k. I award N6,000.00 cost in favour of the plaintiff against the defendant.”

It is this judgment that the defendant as Appellant is appealing against by his Notice of Appeal dated the 27th July, 2006 which is reproduced hereunder from pages 38 and 39 of the Record of Appeal:

“IN THE COURT OF APPEAL HOLDEN AT IBADAN

SUIT NO: HSK/27/2006

APPEAL NO:

BETWEEN:

MURIANA OLALEKAN DEFENDANT/APPELLANT