Anambra Home Ownsership Co. Ltd. V. Peter N. Enumelu (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED L. TSAMIYA, J.C.A.

This is an appeal against the ruling of the High Court of Anambra State delivered on 25/4/2007 in suit No. A/358/2006.

On the undefended List action, commenced on 27/11/2006 from the State High Court of Anambra, sitting in Awka Judicial Division (herein referred to as the trial Court) the appellant (as defendant) was sued under the undefended list action by the respondent (as plaintiff) claiming as follows:

1. The sum of N301,815.36 (Three hundred and one thousand, Eight hundred and fifteen Naira Thirty six Kobo) being the balance of Money deposited with the appellant by the respondent as at 2003 excluding the accrued interest from 2004 till date, which money the appellant has refused to pay the respondent from 2000 till date.
2. Interest on the sum claimed at the rate of 5% monthly from September, 2004 till date and 5% interest monthly on the judgment debt till the judgment debt is liquidated.

From the record of the appeal the sum claimed represents the balance of money he deposited with the appellant who operates a saving account outfit. The appellant has refused to pay the money to the respondent despite repeated demands. The respondent also claims 5% interest monthly from September 2004 to date and also 5% monthly interest on the judgment sum from the date of judgment until the judgment debt is liquidated.

The respondent’s application for the issue of the writ of summons in respect of his claim was supported by an affidavit of 21 paragraphs. The respondent also attached Exhibits ‘A’ – ‘E’ to his affidavit. Exhibit ‘A’ is his identity card as customer of the appellant. Exhibit ‘B’ is the letter dated 15/3/2004 written by the respondent’s Solicitor to the appellant demanding payment of the respondent’s money. Exhibit ‘C’ is the petition written by the respondent to the Commissioner of Police complaining about non-payment of the respondent’s money by the appellant. Exhibit ‘D’ is an Agreement concluded between the respondent and the appellant whereby the appellant agreed to pay the respondent N15,000.00 per month for 4 months toward liquidating the debt. It was agreed therein that after 4 months the installment should be reviewed upwards for faster liquidation of the amount involved. Exhibit ‘E’ is another letter written by respondent’s solicitor to the appellant reminding the appellant that he had reneged on Exhibit ‘D’. When all these steps failed to make the appellant liquidate the sum owed the respondent, the respondent brought the action asking to be paid his money.

On the service of the above mentioned documents on the appellant, he filed a notice of intention to defend the suit with an affidavit. In the appellant’s affidavit in defence, he admitted that Exhibit ‘D’ was reached between the parties but said that after the payment of N5,000.00 per month for 4 months, the respondent failed to approach the appellant as stipulated in the said Exhibit to agree on another reviewed monthly payment. He said also that the appellant does not owe the respondent and that the trial Court should transfer their matter to the general cause list for full hearing.

The trial court, after studying the appellant’s affidavit, refused him leave to defend the suit, thus heard as undefended one and judgment was given thereon without calling upon the respondent to summon his witnesses to prove his case formally.

The learned trial judge in her ruling, relying on order 11 rule 5(2) of the Anambra State High Court Rules stated as follows:

“The defendant (appellant) has no defence at all how much more ground defence in this suit. There is no basis to transfer the matter to the general cause list as the defendant (appellant) has not disclosed any triable issue. Judgment is hereby entered in favour of the plaintiff (respondent) in the sum of N301,815.36 (Three hundred and one thousand, Eight hundred and fifteen Naira, and thirty -six Kobo) being the balance of Money deposited by the plaintiff with the defendant (appellant) as at 2003 excluding the accrued interest from 2004 till date.”

As for the claim for 5% interest the learned trial judge further stated:

“However I do not see the need to transfer the issue of interest to the general cause list. Legally there are two ways by which a claim for interest on a sum of money claimed as a debt arise: Firstly, as of right – under a contract. Secondly, where there is power conferred by Statute to do so in the exercise of the court’s discretion, see Himma Merchants Ltd Vs. Alhaji Inuwa Aliyu (1994) 6 SCNJ (Pt.1) 87 at 88.”

The defendant (appellant) operates a saving accounts Scheme. Normally savings account attracts interest. Judicial notice should be taken of the fact that bank and other institutions such as the defendant who operates saving accounts Schemes pays interest on deposits. The plaintiff (respondent) is therefore entitled to his interest at 5% per annum from the year 2004 until the money fully paid.

Plaintiff (respondent) is also entitled to 5% judicial interest on the judgment sum from the date of this judgment until the entire money is liquidated. I fix costs at N10,000.00 in favour of the plaintiff(respondent) inclusive of out of pocket expenses. (italics and words in brackets mine).

Being dissatisfied with the ruling of the learned trial judge the appellant by Notice of Appeal dated 11/5/2007 appealed to this Court on 5 Grounds of appeal.