Alhaji Auwalu Darma V. Oceanic Bank International Nigeria Ltd (2004)

LawGlobal-Hub Lead Judgment Report

ALAGOA, J.C.A

This is an appeal against the Judgment of Haliru, J., of the Kano State High Court, which was delivered on the 19th June, 2001, in suit No.K/352/99. In the said judgment the appellant (then defendant) was found liable to the respondent (then plaintiff) in the sum of N1,398,519.81 being outstanding debit balance as at the 19th June, 2001, on the appellant’s current account No.0401414026 maintained with the respondent at its Kano Branch inclusive of accrued interest arising out of banking facility granted the appellant upon his request by way of overdraft.

Briefly, the facts are that the appellant was a current account customer of the respondent and maintained an account No.0401414026 with the respondent’s Kano branch office situated at No.83 Ibrahim Taiwo Road, Kano. By an application dated the 2nd day of January, 1998, the appellant requested for an overdraft facility of N2,000,000.00 (Two million naira) only from the respondent which was considered and approved and the appellant on the 8th January, 1998, withdrew the said sum of N2,000,000.00 through his cheque No.02473060473. The appellant thereafter commenced repayment of the facility, but later abandoned the exercise according to the respondent, which was however denied by the appellant. Several demands were said to have been made by the respondent to get the appellant to regularise his account with the respondent bank to no avail whereupon the respondent engaged the services of the law firm of O. A. Dada and Co. to recover the entire outstanding balance on the appellant’s account, which at the close of business on the 30th April, 1999, stood at N708,875.96.

On the 18th May, 1999, the respondent took out a writ under the undefended list pursuant to Order 23 of the Kano State of Nigeria High Court (Civil Procedure) Rules, 1988, against the appellant claiming the sum of N708,875.96 allegedly being the outstanding balance standing to the appellant’s debit on the appellant’s account No.0401414026 as at the 30th April, 1999, inclusive of the accrued interest purportedly granted the appellant by way of overdraft.

Attached and marked as exhibit B.B1 and referred to in paragraph 3(iii) in the affidavit in support of the writ of summons under the undefended list is a copy of the appellant’s application dated the 2nd January, 1998, for the overdraft facility in the sum of N2,000,000 (Two million naira) only. Also, attached as exhibit B.D2 in paragraph 3(ix) of the said supporting affidavit is a copy of the statement of account of the appellant with the respondent bank. The respondent has deposed in paragraph 4(b) of the supporting affidavit that the appellant “has no iota of defence to this action”.

The appellant in denial of liability to the claim filed a notice of intention to defend the action dated the 19th July, 1999. The notice is supported by a 7 paragraph affidavit of the same date. The notice is also supported by a further affidavit dated the 28th July, 1999. The case proceeded to be heard under the undefended list and on the 29th July, 1999, the appellant through his counsel A. Malami, Esq. admitted liability in the sum of N300,000.00 only whereupon consent judgment in that sum was entered in favour of the respondent by the court with 10% interest from that date to full liquidation of the judgment. Part of the consent judgment was that the outstanding balance of the plaintiff’s (now respondent) claim against the defendant (now appellant) be transferred to the general cause list.

The court then went on to order pleadings, giving the plaintiff 30 days to file its statement of claim and the defendant 5 days to file his statement of defence. The case was then adjourned to the 10th November, 1999, for hearing. This can be seen on page 3 of the printed record. After several adjournments, the court on the 19th June, 2001, proceeded to hear the case. It is perhaps necessary to state that pleadings had earlier been filed and exchanged between the parties. On the hearing date i.e. 19th June, 2001, the defendant (now appellant) was not represented by counsel. One Mr. Dada, appearing as counsel for the plaintiff (now respondent) informed the court that the defendant had been served with a hearing notice and that the case was for hearing. The case then proceeded to be heard with the only witness for the plaintiff giving her evidence as follows:

PW1 Female, Christian, Affirmed, Speak English.

Name: Franka Okolo

Address: 83 Ibrahim Taiwo Road, Kano

Occupation: Credit Officer. I work as Credit Officer of the plaintiff. We give out loans and overdrafts and recover them. I know the defendant in this case who is a current holder No. 0401414026. I could recall 2/1/98, the defendant came to our bank and asked for overdraft facility N2 Million and the application was granted on 8/1/98, he withdrew the whole amount. Thereafter, he repaid some part of the money, but stopped paying. He was pursued to pay but refused to pay and the bank instructed the solicitor to recover the balance. He sent a demand notice to the customer but he refused. I can recognise the application and solicitor’s demand notice. These are the documents just shown to me.

Mr. Dada: I seek to tender the two documents in evidence.

Court: Defendant’s application dated 2/1/98 and the plaintiff’s demand notice dated 29/10/98 are admitted as exhibits 1 and 2 respectively.

Witness: After the demand notice the defendant refused to pay so he was sued. We have the defendant’s statement of account extracted from our records at the end of every month. I partake in the preparation of the account statement. I can therefore recognize it. We have prepared one from January, 1998 as to date (June 2001). This is the statement.