Calistus Obitude V Onyesom Community Bank Ltd (2014)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The Plaintiff/Respondent instituted this action against the Defendant/Appellant which was placed on the undefended list. The defendant/appellant filed an affidavit and Notice of Intention to defend the suit. At the end of the hearing based on the affidavit evidence of the parties, the learned trial judge entered judgment for the plaintiff/respondent in the sum of N7,400,595.53k (Seven Million, Four Hundred Thousand, Five Hundred and Ninety-Five Naira, Fifty-Three Kobo) less N1,000,000.00 (One Million Naira) paid by the defendant on 13/9/2002 during the pendency of this suit with interest at the rate of 5% per annum from the date of judgment until the total payment of the judgment debt.

Dissatisfied with the judgment the defendant appealed to the Court of Appeal also known hereafter as Court below, which dismissed the appeal, upholding the judgment of the Court of trial.

Not satisfied once more the Appellant has appealed to the Supreme Court.

FACTS:

The plaintiff granted the defendant an overdraft facility in his personal account NO. 2320 from the 4th day of September, 2000, up to the 13th day of August, 2001 by allowing the defendant to overdraw his account to the tune of Seven Million, Four Hundred Thousand, Five Hundred and Ninety – Five Naira, Fifty-Three Kobo (N7,400,595.53) with interest and the defendant utilised the aforesaid amount for his benefit. The defendant by equitable mortgage secured the said overdraft by depositing his Customary Right of Occupancy in respect of his property at Ozalla Layout, Obosi, Anambra State. On the 15th August, 2001, the plaintiff wrote to the defendant to repay his indebtedness of N7, 400,595.53k but the defendant failed to do so. On the 24th of October, 2001 the plaintiff through its solicitors wrote the defendant demanding the payment of his entire indebtedness to the plaintiff regarding the account aforesaid and two other indebted accounts of the defendant. On the 1st day of November, 2001, the defendant through his solicitor admitted his entire indebtedness to the plaintiff and pleaded with the plaintiff to give him up to the 31st of October, 2001 to liquidate his entire indebtedness to the Plaintiff.

On the 2nd of May, 2002, one Mr. S. C. Ohajianya at the instance of the defendant wrote to the plaintiff and attached thereto a letter dated 10th day of April, 2002 from the defendant and pleaded with the plaintiff to exercise patience with the defendant over the defendant’s indebtedness to the plaintiff. However, the defendant failed to liquidate the debt and the plaintiff instituted this suit.

The defendant filed a Motion on Notice dated 14/5/2002 praying the court to strike out the above stated suit on grounds of it being premature in that the plaintiff had not given a demand notice to the defendant before instituting the action. In the supporting affidavit, defendant admitted taking the overdraft facility but his only grouse was that no demand notice was given him by the plaintiff for the repayment of the debt.

In the course of the proceedings at the High Court, the defendant in further admission of indebtedness to the plaintiff paid in the sum of One Million Naira (N1, 000,000.00) to the plaintiff thus reducing the amount owed to the plaintiff to N6, 400,595.53k.

The version as put forward by the defendant is that the overdraft facility was for the sum of N3.5 million naira and the defendant withdrew various sums of money at different dates just as he paid in moneys to service the account. He also ran three separate accounts in the plaintiff’s bank. That the three separate accounts were operated interchangeably in that the plaintiff transferred sums of money from one account to the other without the authority or knowledge of the defendant and without explanation for so doing.

He tendered what he contended to be examples of such irregular transfers which were Exhibits B, B(a), B14, B17, Exhibits C, C 49 – 3.

After hearing in the suit, the trial Court entered judgment against the appellant, who aggrieved went to the Court below which dismissed the appeal as lacking in merit hence the current appeal to this Court.

On the 13th day of January, 2014 date of hearing, learned counsel for the appellant was absent, though notified by hearing notice of the hearing and so the appeal had to go on. The Appellant’s Brief of Argument settled by Chief A. B. Onyekwelu and filed on 16/5/06 was deemed argued by the Court. In it were framed two issues for determination, viz-:

1. Whether having regard to the state of the statements of account tendered by both the appellant and the respondent which the Court of Appeal never adverted to, but based its judgment on the previous admissions of the appellant, the appellant can be said to have got a fair hearing by the Court.
2. Is it correct that having regard to all the exhibits before the Court, the appellant’s allegation of irregularities and illegal charges were merely peripheral.

Learned counsel for the Respondent, Miss B. A. Obiora adopted their Brief of Argument settled by Jude Obiora Esq. And filed on 16/8/06. He crafted a single issue as follows:-