Alhaji Adisa Saka Ahmed V. Jimoh Adeyemi (2006)

LawGlobal-Hub Lead Judgment Report

AMINA ADAMU AUGIE, J.C.A.

The Respondent as Plaintiff at the Abeokuta High Court of Ogun State, instituted the action that culminated in this appeal by filing an Undefended Writ of Summons supported by a 14-paragraph Affidavit and an Exhibit – “A”.

The case for the Respondent is that the Appellant who was his friend approached him sometime in 1988 to stand surety for him in respect of a loan/overdraft facility of N30, 000.00 he proposed to take from United Bank for Africa Ltd (UBA). The Respondent agreed to surrender the deed of title to his landed property at Ijeje, Abeokuta, on which the Bank subsequently prepared a legal mortgage. Sometime in 1992, one Mr. Aladeika of UBA complained to the Respondent about the Appellant’s failure to service the loan and warned him that his property might be put on auction for sale to satisfy the debt owed by the Appellant. The Respondent informed the Appellant about this and later that year, the Bank got a lawyer to write him that as a result of the Appellant’s failure to settle his indebtedness, which had risen to almost N450, 000.00, his landed property mortgaged to the Bank had been passed on to the Auctioneer for sale. The said property was put up for sale sometime in 1993, but after negotiations, the Bank reduced the debt to N300, 372.00, which the Respondent liquidated finally in May 1999.

The Respondent demanded the refund of the said sum from the Appellant to no avail, and believing that the Appellant had no defence to the suit, he filed the Undefended Writ of Summons at the lower Court, claiming as follows –

“The sum of N300,372, 00 being refund of the Defendant’s indebtedness to the United Bank for Africa PLC on his Account No. 601-03301-9 paid by the Plaintiff to forestall the sale of the Plaintiff’s property at Abeokuta, which was pledged and mortgaged as security for the facility granted to the Defendant, at the request of the Defendant, by the United Bank for Africa PLC, Abeokuta in 1988.

The Plaintiff also claims interest on the said sum at the rate of 21% per annum from 14th May, 1999 until Judgment and thereafter at the rate of 10% per annum until final liquidation of the whole debt….”.

The Appellant however filed a Motion on Notice supported by an 11-paragraph Affidavit praying the lower Court for an order granting him leave to defend the suit and “removing the suit from the Undefended List to the Ordinary or General Cause List”. He averred in paragraph 5 of his Affidavit that “contrary to the impression created or framed by” the Respondent, he had “a thorough defence to his suit”, and further averred in paragraph 6 –

“That contrary to the averment of the Plaintiff in paragraphs 1 to 9 of his Affidavit, the transaction that gave rise to his action started as follows –

(a) Sometime in 1988, the Plaintiff approached me for a loan of which I informed him that I had no sufficient money I could lend him at the time.

(b) The Plaintiff thereafter asked me whether I had a current account in a Bank with which I could assist him in securing a loan, and I answered in the affirmative.

(c) The Plaintiff then asked me to consult my Bank on the possibility of securing a loan from them.

(d) In line with the Plaintiff’s request, I consulted my Bank, UBA PLC, Onikolobo Road, Abeokuta, wherein I was given details of the procedure and security required which I conveyed to the Plaintiff.

(e) The Plaintiff informed me that as for security, there was no problem, since he had a property he can use as mortgage.

(f) When the Plaintiff and I reached the Bank, we were told that since the Plaintiff had no account with them, he could not secure the loan.