ACB International Bank Plc V. Chief (Sir) A.C. Adiele (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A (Delivering the Leading Judgment)

On 19th April, 2005 the Rivers State High Court (Coram: E. Teetito, J.) entered judgment for the plaintiff, the present Respondent, against the Appellant, sued through its predecessor, ACB INTERNATIONAL BANK PLC, as the defendant on the undefended list procedure as per the claims endorsed on the writ of summons. The claims endorsed on the writ of Summons are as follows-

The plaintiff claims against the defendant as follows-

1. The liquidated sum of N200, 355.94 (Two Hundred Thousand, three Hundred and Fifty Five Naira Ninety Four kobo) only being and representing closing balance of Plaintiffs account with the Defendant Bank.
2. The liquidated sum of N251, 625.78 (Two Hundred and Fifty One Thousand, Six Hundred and Twenty Five Naira, Seventy Eight Kobo) being and representing Plaintiffs monthly Pension of N2, 676.87 (Two Thousand Six Hundred and Seventy Six Naira Eighty Seven Kobo) accruing from March 1997 – December 2004.
3. Interest on the consolidated sums above amounting to 451.981.72 (Four hundred and fifty one thousand, nine hundred and eighty one naira, seventy two kobo) at the rate of 21% per month from 1st March 1997 till Judgment is delivered and there after till the amount of Judgment debt is fully paid.

The court below had earlier on 18th March, 2005 granted leave to the Respondent, as the plaintiff, to bring the claims on the undefended list.

The claims of the Respondent were verified by the affidavit deposed to by Ce Opia-Adiele, a legal practitioner. Paragraphs 3-20 of the affidavit, being germane to this appeal, are hereinbelow reproduced (without the exhibits thereto) as follows –

3. That the Plaintiff retired as Zonal Head of the Defendant Bank in Port Harcourt Rivers State.
4. That the Defendant carries on business as bankers with offices situate at Trans – Amadi Industrial Layout, Port Harcourt within the Jurisdiction of this Honourable Court.
5. That the Defendant was formerly known African Continental Bank PLC prior to recapitalization and the change of its name to ACB International Bank PLC.
6. That sometime on or about February 1997 the Plaintiff formerly retired from the services of the Defendant Bank.
7. That the Defendant duty assessed and approved Plaintiff’s retirement benefits/entitlements in a letter dated 30th January, 1997 a copy of which is annexed hereto and marked EXHIBIT “A”.
8. That in the aforesaid letter, the Defendant undertook to advice Plaintiff of his benefits under their staff pension scheme through the pension department.
9. That by the terms of the said letter, the Zonal Head Port, Harcourt of the Defendant Bank was advised to credit Plaintiff its account with the sum of 267,833.31 (Two Hundred and Sixty Seven thousand Eight Hundred and Thirty Three Naira Thirty One Kobo) less Plaintiffs indebtedness to the Bank.
10. That the Defendant in line with its staff pension scheme, began paying a month pension of 2,676.87 (Two Thousand six Hundred and seventy Six Naira Eight Seven Kobo) in the Plaintiffs savings account.
11. That from March 1997 December 2004 the afore-stated pension of 2,676.87 (Two Thousand Six Hundred and Seventy Six Naira Eighty seven Kobo) had risen to N251,625.78 (Two Hundred and Fifty One Thousand, Six Hundred and Twenty Five Naira Seventy Eight Kobo) only.
12. That sometime in December 1998, the Defendant though its human resources manager purportedly withdrew Plaintiffs retirement and replaced same with a dismissal from service due to his conviction by the Failed Bank Tribunal. A copy of the letter is attached and marked Exhibit “B”.
13. That the Defendant vide the aforesaid letter insisted that Plaintiff returns all monies paid him as retirement benefits/entitlements and pension, and went ahead to reverse monies paid into Plaintiffs savings Account as pension and also froze Plaintiff current account with it, which had a closing balance of 200,355.94 (Two Hundred Thousand Three-hundred and Fifty Five Ninety Four Kobo) photocopies of Plaintiff passbook and statement of account are attached and marked Exhibit “C” and “C1”.
14. That despite the letter written by Plaintiffs solicitor praying Defendants to maintain the status quo pending the outcome of Plaintiff Appeal to the Court of Appeal, Defendant went ahead to freeze Plaintiffs Account. Copy of the letter is attached and marked EXHIBIT “B”.
15. That the Court of Appeal sitting in Calabar after due consideration quashed the conviction of the

Plaintiff by the Failed Banks Tribunal and discharged and acquitted him. A copy of the Judgment order in attached and marked Exhibit “E”.

16. That Plaintiff informs me and I verily believe him that by the Bank’s policy, the interest rate for current Deposit Accounts as at 1997 stood at 21 %? per month.
17. That despite repeated demands, the Defendant has failed refused and or flagrantly neglected to pay the outstanding consolidated sum of N451, 981.72 (Four Hundred and fifty One Thousand Nine Hundred and Eight One Naira, Seventy Two Kobo).
18. That I know as a fact that the Defendant is not interested in paying the aforesaid sum of money Unless compelled to do so by the Honourable Court.
19. That I also know that Plaintiffs claim is for a liquidated money demand.
20. That the Defendant has no defence to this claim.

The Appellant, as the defendant filed Notice of Intention to Defend the suit on 19th April, 2005 together with an affidavit purporting to set out the defence of the Appellant on the merits.

Only paragraph 3 of this terse affidavit of David Eka, Jnr is material, and it is herein below reproduced as follows –

3. That I was informed by the Defendant – and I verily believe him as follows-

a. That the plaintiff was a staff of African Continental Bank PLC up to 11th February, 1997.

b. That the plaintiff was initially retired from service but due to the judgment of Failed Bank Tribunal, the retirement was converted to dismissal.

c. That the Defendant is not aware of the said acquittal by the Court of Appeal, as it was not a party to the action.

d. That since the Defendant is not aware of the Judgment of the Court of Appeal the Judgment of the Failed Banks Tribunal is still relied upon.

e. That the justice of this case will be active if the Defendant is given leave to defend this suit.

The perverse averments in the affidavit of David Eka, Jnr, purporting to be an affidavit disclosing the defence of the Appellant on the merits to the suit, were done inspite of the enrolled Order of the Court of Appeal, Exhibit E, and paragraph 15 of the affidavit verifying the claims of the Plaintiff/Respondent. The Court below gave due consideration to the two affidavits and held, rightly in my view, that it was “not persuaded that the Defendant has prima facie defence to this suit” and that there was no defence to the suit. Since this finding of fact has not been appealed it remains binding for ever against the Appellant; as the Defendant in the suit. See UDEGBUNAM V. FCDA (2003) 10 N.W.L.R. (pt. 829) 487.