Okpoko Community Bank Ltd. & Anor. V. Dr. P. C. Igwe (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Anambra State High Court sitting in Onitsha in suit No.O/289/2004, delivered on 24th July, 2006 per Agbata, J. wherein the learned trial judge entered judgment for the Respondent in terms of the reliefs sought. The facts leading to the said judgment as can be garnered from the record transmitted to this court are as stated hereunder.

The Respondent, a Medical Doctor, as plaintiff at the court below, sued the Appellants, Community Bank Operators for the following reliefs:-

“(a) N2,986,838.57k being the fixed deposit and amount accruing thereon as at 31st March , 2004.

(b) N166,857.65k being amount in plaintiff’s current account as at 31st March, 2004.

(c) Interest at 5% per annum on the said sum until judgment.

(d) Interest at 4% per annum until the judgment is satisfied.”

Originally, the suit was brought under the Undefended List but was later transferred to the general cause list. Both parties exchanged pleadings. The Respondent alleged in his statement of claim that the 2nd appellant persuaded him to fix the sum of N2,160,810.00 with the 1st Appellant. That upon maturity, he demanded for the money including accrued interest but the appellants failed to pay him. The Appellants in their statement of defence averred that the alleged fixed deposit was cancelled and that it was merged with current account. That the Respondent withdrew the money leaving a deficit account. The Appellants counterclaimed against the Respondent for the money in the deficit.

At the trial, the Respondent testified and called one witness in proof of his case. The Appellants did not testified and did not call any evidence. Rather, they relied on the case of the Respondent. Counsel for both parties filed their written addresses. Thereafter, the learned trial judge entered judgment for the Respondent on 24th July, 2006.

Dissatisfied with the stance of the learned trial judge, the Appellants filed notice of appeal on 27th September, 2006. The said Notice contains four grounds of appeal out of which the Appellants have formulated three issues for the determination of this appeal. In the brief signed by D. C. Maduechesi Esq., learned counsel for the Appellants; the three issues are as follows:-

“1. Whether or not the Respondent discharged the burden of proof required of him to be entitled to judgment?

2. Whether the failure of the Appellants to adduce viva voce evidence at trial automatically entitled the Respondent to obtain judgment.
3. What was the status of the 2nd appellant in the entire transaction leading to this suit.”

The learned counsel for the Respondent, Olivia Nneka Ofodile Esq., who also signed the Respondent’s brief distilled two issues for determination. These are the two issues:

“1. Whether the Respondent discharged the burden of proof required of him in this civil matter.

2. What is the legal effect of failure of a party to adduce documentary or viva voce evidence at the trial?”

Before I take a further step in this judgment, I observe that the Respondent has on page two and particularly paragraph 2.06 thereof, given Notice of Preliminary Objection in respect of the third issue in the Appellants’ brief of argument. Also in paragraph 2.07, of the said Respondent’s brief, he has given the grounds for the preliminary objection. For whatever it is worth, the said objection is to the effect that issue 3 is a fresh issue as same is not bourne out of the judgment of the learned trial judge delivered on 24th July, 2006.