Alh. Garba Abubakar Bagobiri V. Unity Bank PLC (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

This appeal is against the judgment of the High Court of Kano State, sitting at Kano delivered on 9th May, 2009 in suit No. K/15/2009, wherein the Respondent as the plaintiff had by the writ of Summons dated 9th January, 2009 claimed against the Appellant as the defendant as follows:-

1. The sum of N15,114,113.90 (Fifteen Million, One Hundred and Fourteen Thousand, One Hundred and Thirteen Naira and Ninety Kobo) being outstanding balance of the credit facility as at 24th September, 2008 obtained by the defendant from the plaintiff which said credit facility has been enjoyed, utilized and made use of by the defendant but failed, refused and/or neglected to repay despite repeated demand.
2. 21% interest thereon from 24th September 2009 till date of judgment and 10% Court interest thereafter, till liquidation.

?Upon the Respondent’s motion exparte filed on 9/1/2009 seeking that the writ be placed for hearing under the undefended list and same supported by affidavit of five paragraphs deposed to by one Miss Gloria Samson, the trial Court placed the suit for

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hearing under the undefended list. The Appellant filed a Notice of Intention to defend the suit but the action was heard under the undefended list and the learned trial judge entered judgment in favour of the plaintiff against the defendant in the sum of N15,114,113.90 plus interest at 10% from the date of judgment till full and final liquidation of the judgment debt.

The defendant who was dissatisfied with the judgment filed a Notice of Appeal with three grounds of appeal, and before this Court the parties filed and exchanged their Briefs of Argument.

The Appellant’s Brief of Argument prepared by A. C. Agu, Esq. of Counsel was filed on 13/2/15 while the Respondent’s Brief of Argument was settled by P. A. Daffi, Esq. learned Counsel and was filed on 18/3/15. The brief facts are that the plaintiff, a banking concern registered in Nigeria with branches all over Nigeria including Bello Road, Kano had sought the sum claimed as the money due from the Respondent, as at 24/9/08 out of the credit facility granted to the Respondent, its customer and which the Respondent failed to pay despite demand letters to that effect.

?The issues identified by the

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Appellant for determination in this appeal are three:

1. Whether the affidavit in support of notice of intention to defend in this case disclosed no defence on the merit to warrant the transfer of the suit to general cause list.
2. Whether the trial judge who relied on Exhibit IX or IV to enter judgment in favour of the Plaintiff/Respondent was right in law.
3. Whether the judgment in this case was not tainted by fraud.

According to the Respondent, the issues for determination are:

1. Whether the trial Court properly evaluated the evidence before it, before judgment was entered in favour of the Respondent as contained on the face of the writ.
2. Whether the judgment in this case was not tainted by fraud.

The appeal will be considered and determined on the basis of the three issues raised by the Appellant as compressed into two by the Respondent. The Appellant’s 1st and 2nd issues are within the 1st issue raised by the Respondent.

The Appellant’s learned Counsel contended on the 1st issue that the affidavit in support of the Notice of intention to defend the action disclosed a defence on the merit and the holding of the

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