Amri Medical Relief Limited & Ors V. E-barclays Microfinance Bank Limited (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment)

The respondent granted loan facilities to the 1st and 2nd appellants to the tune of Ten Million Naira (N10,000,000:00) each. The loans granted to the 1st and 2nd appellants were secured by collaterals, namely; title documents of the 3rd appellant’s land, Plot No.83869 (A) 32 Road C Close, Gwarinpa Estate, Abuja and Airport Road, Sabon Lugbe, which were deposited with the respondent.

The 3rd appellant (Managing Director/Chief Executive Officer of the 1st and 2nd appellants) gave a personal guarantee for the repayment of the loans. He also issued a post-dated cheque for Twelve Million Naira and signed a loan acknowledgement and transfer of title document.

Upon failure to repay the loan as agreed, the respondent took out a Writ of Summons in the undefended list against the appellants at the High Court of the Federal Capital Territory, Abuja Judicial Division, holden at Maitama in suit No. FCT/HC/CV/958/200 claiming as follows:

“(a) N9,600,000.00 from the 1st defendant and 3rd defendant jointly and severally being the balance outstanding from the principal sum N10M granted to the 1st defendant as loan and guaranteed by the 3rd defendant.

(b) N9,010,250.00 from the 2nd defendant and 3rd defendant jointly and severally being the balance outstanding from the principal sum of N10M granted to the 2nd defendant as loan and guaranteed by the 3rd defendant.”

The writ was supported by an affidavit of 22 paragraphs with documents attached as Exhibits. It was served on the appellants on 21/2/2011 with the return date being 28/2/2011 (not 28/2/2010 as stated at page 26 of the record of appeal). On the said date and in the absence of the appellants, who did not file a notice of intention to defend and an affidavit showing cause, the trial court adjourned the suit to the 16/3/2011 for judgment. On that date, the trial judge entered judgment in favour of the respondent against the appellants in the sums claimed with cost of N20,000:00 in respondent’s favour.

Aggrieved by the judgment, the appellants appealed to this court by way of notice of appeal bearing two grounds of appeal.

In his brief of argument filed on 30/2/2012, Obi C. Nwakor, Esq; of counsel, for the appellants, formulated two issues for the determination of the appeal. The issues are:

“1. Whether the trial lower court had jurisdiction to have heard the suit of the respondent on the 28th day of February, 2011 and given judgment thereof, when the time limited by the civil procedure rules of the High Court of the Federal Capital Territory Abuja 2004, for entering appearance had not expired.

2. Whether the trial lower court in awarding/entering monetary judgment for the respondent was not re-writing the agreement and the true intention of the parties as contained in the “loan acknowledgment agreement.”

On his part, Charles Ndukwe, Esq; of counsel, for respondent formulated one issue for the court’s determination of the appeal. The issue is:

“Whether in the circumstances of this case, it was proper for the lower court to enter judgment for the respondents.”

The issues formulated by the appellants are more comprehensive than the single issue formulated by respondent’s counsel. I shall therefore adopt them for the determination of this appeal.

Arguing issue 1, counsel for the appellants cited Order 12 Rule 1(1) of the High Court of the Federal Capital Territory Abuja Civil Procedure Rules 2004 and pointed out that the time limited in the Writ of Summons for entry of appearance is 8 days while hearing was done within 7 days. This, in his view, robbed the trial court of competence. He cited and relied on the case of ADERONKE BAKERY LTD V. ONYEJEKWE LTD (1992) 2 NWLR (590) 228, 233 in support.