Afonja Community Bank (Nig) Ltd V. Mr. M. F. Akpan (2001)

LawGlobal-Hub Lead Judgment Report

AMAIZU, J.C.A.

This is an appeal against the ruling of Gbadeyan, J., of the Kwara State High Court, sitting at the Ilorin Division of the court. The ruling was delivered on the 15th day of October, 1999. The ruling was as a result of a motion on notice brought before that court seeking the following reliefs:-

“(1) An order of the court extending the time within which the applicant may apply for an order setting aside the judgment of the court in suit No. KWS/108/96 delivered on 18th December, 1998.

(2) An order of the court setting aside the judgment of the court in suit No. KWS/108/96 delivered on 18th December, 1998.

(3) And for such further order or other order or orders as the court may deem fit to make in the circumstances.”

The facts that led to the ruling are that the respondent as the plaintiff in suit KWS/108/96 claimed against the appellant as the defendant the following reliefs:-

1. A declaration that the plaintiff is separate and distinct from the limited liability company Modern Morgy & Sons Ltd., and that he is not liable for the loan granted the company by the defendant.
2. An order restraining the defendant, her agents, servants and privies from further harassment of the plaintiff in any manner whatever on account of the loan to Modern Morgy & Sons Ltd.
3. The plaintiff claims the sum of N1.5m as general damages for unlawful detention, sundry harassment and embarrassment caused him by the defendant.

Pleadings were duly filed and exchanged by the parties. The hearing of the suit suffered many adjournments because the appellant and his counsel did not attend the sittings of the court.

Before the trial started, the respondent amended his statement of claim once. The trial proceeded at the stage of the amended statement of claim and the statement of defence. At the hearing, the appellant and his counsel were again absent. The respondent was called upon to prove his case. He gave evidence but called no witness.

It is his evidence that he was appointed the Managing Director of Modern Morgy & Sons Ltd. at a meeting held by the Board of Directors of the company in 1993. During that period, the company won a contract from the State Government to construct an access road from the Nigerian Television Authority (NTA) sub-station, Ganmo to Radio Kwara sub-station also at Ganmo. The total cost of the contract was N1,513,916.25. The company was unable to fund the contract. It approached the appellant a bank which provided the money. The security for the loan was the undertaking by the company that all payments in respect of the contract should be made into the account of the company with the appellant.

The company completed the contract on schedule. The performance was certified by the officials of the Kwara State Government that it was up to the contract value. Still, the Kwara State Government did not pay the money due to the company into its account with the appellant.

Because of this, the appellant started harassing the respondent and his household in his personal capacity as if the respondent was the debtor. The appellant hired the services of a private security outfit by name “Fagba Private Investment Bureau Services” to intimidate the respondent. It got to a stage when the respondent was at the instance of the appellant arrested and detained by the “B” Division of the Nigeria Police, Ilorin. The respondent was later transferred to the Force Headquarters, Alagbon, Lagos where he was further detained.

It was because of the detention and molestation by the agents of the appellant that the respondent sued the appellant in the lower court. At the trial, the respondent tendered 7 exhibits in proof of his case. The learned trial Judge after considering the evidence of the respondent and the written address of his counsel gave his judgment. Part of it reads:-

“… Although I find the plaintiff very modest in his unchallenged claim of N1.5m, I hereby order that the defendant bank shall pay the plaintiff general damages assessed at N1,250,000 for causing him all the enumerated unlawful detention, harassment and embarrassment.”

The appellant claimed that it was not served any hearing notice.