African Continental Bank Ltd. V. Umaru Gwagwada (1994)

LawGlobal-Hub Lead Judgment Report

OLATAWURA, J.S.C. 

This appeal arose out of the ruling by Puusu. J. when the learned trial Judge on 10th February, 1988 ordered certain documents sought to be tendered by the appellant (hereinafter referred to as the plaintiff) on the objection raised by the respondent (hereinafter referred to as the defendant) be marked “tendered and rejected”.

Any document so marked in the course of any proceedings can neither be tendered again nor relied upon either in the course of address by counsel nor commented upon by the trial judge. The importance or relevance of such a document marked “tendered and rejected” invariably gave rise to the appeal to the Court of Appeal.

In order to appreciate the issue involved, I will set hereunder the relevant and short history of this case. The claim which was for the sum of N5,377,374.20 being the principal and interest due on the money allegedly lent to the defendant by the plaintiff at 7% interest was first put on the undefended list by virtue of Order 3 Rule 8 of High Court of Benue state (Civil Procedure) Rules 1978. The defendant through his counsel and in accordance with Order 3 Rule 10 of the same Rules filed a notice of Intention to Defend the suit. The Notice was dated 17th August, 1987. It was served on the plaintiff. There was an affidavit in support.

According to the affidavit the defendant deposed he was reliably informed by officials of the plaintiff/Bank at Idumota branch Lagos and the manager of the Plaintiff/Bank at Makurdi that the plaintiff had instituted an action against him for the said sum of N5,377,374.20 being money allegedly lent to him by the plaintiff. He denied the indebtedness and gave a breakdown of his various lodgments in the branches of the plaintiff/Bank in Makurdi, Idumota and Kaduna and specifically deposed in paragraph 7 of the said affidavit as follows:-

“7. That apart from the lodgments referred to in paragraph 6 above. I have made more lodgments into my various accounts with the plaintiff/bank but I have not been presently able to gather together all the relevant pay-in slips.”

To this affidavit he attached a letter and many pay-in-slips.

The record of appeal forwarded to this court shows that pleadings were filed. I believe this must have been ordered after the case was taken out of the undefended list and leave to defend was granted. In the Statement of Claim the Plaintiff averred in paragraph 3 as follows:-

“3. In the course of his business and in operating his accounts with the plaintiffs the defendant used the names ALHAJI GWAGWADA UMARU, GWAGWADA UMARU ALHAJI, A. U. GWAGWADA & SONS LIMITED and ALHAJI UMARU GWAGWADA & SONS LIMITED interchangeable with Alhaji Umaru Gwagwada and held these names out as his other names and the plaintiffs treated these names as defendant’s business names or aliases. These business names were not incorporated.”

Thereafter all the various account numbers operated by the defendants were mentioned and the plaintiffs specially averred in paragraphs 17 and 23 thus:-

“17. The following accounts were opened by the plaintiffs on 2nd December, 1980 as per the defendant’s instructions:-

(a) Loan Account in the name of A.U. Gwagwada Lines & Sons Limited.

(b) A Current Account in the name of Alhaji Umaru Gwagwada & Sons Limited numbered 1372.

(c) A Sinking Fund Account in the name of Alhaji Umaru Gwagwada and Sons Limited numbered 1373.