Alh. Abdul Waheed Ahmed V. Trade Bank of Nigeria Plc (1997)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, J.C.A.

The appellant in this appeal was one of the customers of the respondent Bank at its Ilorin branch in Kwara State. By a letter dated 8th August, 1991, the appellant applied for a short term loan of N500,000.00 from the Ilorin branch of the respondent to enable him to execute a contract for the supply of kitchen equipment to the Government House Ilorin. In this application, the appellant gave the undertaking that the proceeds of the execution of the contract was to be paid directly to the respondent Bank. The respondent, through its letter dated 30th August, 1991 approved the appellant’s application and granted him overdraft facility of N500,000.00 payable on 31st October, 1991. Other conditions of the loan such as the interest thereon and other charges were contained in the respondent’s letter which the appellant signed as having accepted the loan on the conditions it was granted. When the loan remained unpaid up to 7th April, 1992, the respondent wrote to the appellant demanding for the repayment of the loan which by then had arisen to the tune of N544,551.94. When more than one year later on 25th May 1993 the amount due from the appellant rose to N690,500.85 and still there was no effort on the part of the appellant to settle the debt, the respondent then took out a Writ of Summons under the undefended list and claimed from the appellant as defendant the following reliefs

“The claim of the plaintiff against the defendant is for the sum of N690,500.85 being the principal sum plus agreed interest on the loan/overdraft facilities granted to the defendant at his request and which he has failed, neglected and refused to pay despite repeated demands.

Whereof the plaintiff claims:-

(i) The sum of N690,500.85 being the debt outstanding on the defendant’s current account at 25th May, 1993.

(ii) Interest at the rate of 35% per annum from 26th May, 1993 till the date of judgment.

(iii) 10% interest per annum on the “judgment debt from the date of judgment until final liquidation.”

The marked writ of summons on the undefended list was duly served on the defendant now appellant in this appeal together with the affidavit in support of the respondent’s claims paragraph 12 of which clearly deposed that the defendant/appellant had no defence to the action. Inspite of having been so served with the process of the Lower Court, the appellant failed to take any step in accordance with the rules of the lower court to file any notice of intention to defend the suit together with an affidavit disclosing his defence on the merit. Accordingly, the suit was heard as an undefended suit and judgment entered for the respondent in terms of its claims on 29/11/93. Aggrieved by that decision, the appellant with the leave of this court granted on 13/7/95 had appealed against it. Contained in the notice of appeal are the following two grounds of appeal without their particulars:-

“1. The learned trial Judge erred in law when she entered judgment for the plaintiff and treated the suit as undefended when the proper parties for the determination of the case as such whose presence are mandatory are not made parties to the suit.

2. The learned trial Judge erred in law in that the judgment entered as undefended list in favour of the respondent is a clear inadvertence violation of the rule relating to action treated as undefended list.”

Although briefs of argument were duly filed and served by both parties to this appeal before it came up for hearing on 19-3-97, the appellant was not represented at the hearing inspite of his counsel having been put on notice. The appeal was therefore deemed to have been argued by the appellant while the learned counsel to the respondent merely adopted the respondent’s brief of argument and urged this court to dismiss the appeal.

In the appellant’s brief of argument, two issues were formulated from the two grounds of appeal. The issues read:-

“1. Whether the trial court was right in determining the suit under undefended list.

2. Whether the judgment of the court can be sustained.”

In the respondent’s brief of argument however, only one issue was identified for the determination of the appeal. The issue is:-

“Whether the learned trial Judge was not right to have placed the suit on the undefended list and to have given judgment accordingly having regard to the circumstances of the case.”