Alh. Abubakar Sadik Dantama V. Unity Bank PLC (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the Judgment in respect of the appeal filed by the appellant on 11/4/2014 against the decision of Sambo J. of Sokoto State High Court of Justice sitting in Sokoto delivered on 31/3/2014.

On 10/12/2013 the plaintiff had applied by an exparte motion dated 9/12/2013 for leave to issue a writ of summons marked “Undefended List” and for same to be placed under the Undefended List. The affidavit in support of the motion was a 23 paragraph affidavit. On 20/10/2014m the plaintiff’s application was granted.

The writ of summons marked “Undefended List” was issued on 20/1/2014. The claim of the plaintiff as endorsed on its writ of summons read as follows:

“The Defendant on 25th July, 2008 applied to the Branch Manager of Aliyu Jodi Branch, Sokoto of the Plaintiff for an advance facility of N3,000,000.00 (Three Million Naira) only and on 22nd September, 2008 the Plaintiff approved the application wherein it granted the Defendant an Advanced Facility to be repaid within a period of three months from the date of disbursement.

The purpose of the facility was to enable the Defendant to execute a contract awarded to him by Silame Local Government Council for rehabilitation of road at N20.0m. The interest rate is 20% per annum and the parties agreed that the interest rate was subject to change depending on prevailing market condition.

The repayment of the facility was to be domiciled to Unity Bank but the Defendant defaulted when he collected the payment of the contract sum directly.

The Plaintiff wrote several demand letters to the Defendant but he (the Defendant) failed, refused or neglected to heed to the demand letters. The Plaintiff is entitled to continue to charge interest on the facility based on mercantile customs of bankers to charge compound interest on the account and also based on the Central Bank of Nigeria monetary guidelines.

1. The Plaintiff claims from the sum of N5, 121, 715.45 being unpaid balance of the Advance Facility and accrued interest outstanding against the Defendant’s account number 0001001714 with the Aliyu Jodi Branch, Sokoto as at 29th November, 2013 despite repeated demands.
2. 10% on the judgment sum from 18th November, 2013 until judgment is delivered in this suit.
3. Thereafter 10% on the judgment sum until judgment sum is finally liquidated.
4. Cost of this action”

The defendant filed his Notice of Intention to defend and counter affidavit in Support of Notice of Intention to defend on 4/2/2014.

The Learned trial Judge on 31/3/2014 entered judgment in favour of the plaintiff after hearing the parties.

His Lordship had this to say on page 64 of the record of appeal;

“In the case under consideration and having regards to the affidavit evidence and supported by the exhibits ‘A – L’ can it be said the counter affidavit of the defendant had disclosed triably (sic) issues? My answer to the question above is absolutely no and this is in line with what I have earlier observed herein having had the advantage to read and compare the affidavit evidence both presented. Therefore I am satisfied with what plaintiff had presented before this court. The counter – affidavit is simply a saving dace in the absence of any triable issue.”

Consequently the learned trial Judge gave judgment as follows: –

“Therefore from the foregoing, I am satisfied a prima facie case has been made out by the plaintiff and entitled to the judgment of this court in its favour.