Chrisbros Co. Nig. Ltd. V. Eco Bank Nig. Plc. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.(Delivering the Leading Judgment)

This is an appeal by the Appellant against the Judgment of Hon. Justice I.N. Akomas, sitting at Abia State High Court, Aba Judicial Division, delivered on 27th day of November, 2001 on the undefended Suit brought under Order 23 Rule 1 of the High Court (Civil Procedure) Rules 1988.

The Plaintiff/Respondent herein filed the Suit on the undefended list on 20/7/2001 at Abia State High Court, Aba before Hon. Justice I.N. Akomas for the sum of N5,545,692.07 (Five Million, Five Hundred and Forty Five Thousand, Six Hundred and Ninety-Two Naira, Seven Kobo) being unpaid loan with accrued compound interest rate of 26.5% per annum of the sum of N1,000,000.00 (One Million Naira) being loan/over draft. Facility granted to the Appellant on 14th April, 1998 as at 31st January, 2001. Payment of the agreed compound interest rate at 26.5% per annum from 31/1/2001 until Judgment is delivered and payment of the agreed rate 26.5% per annum on the Judgment debt until it is fully paid.

The Respondent’s claim was supported by a 22 paragraphs affidavit brought under Order 23 Rule 1 of the High Court (Civil Procedure) Rules 1988 deposed to on the 20th of July, 2001. Paragraph 5 of the supporting affidavit stated that on the 14th day of April, 1998 the Plaintiff granted to the Defendant on its request a Loan/Overdraft facility of N1m (One million naira) at an agreed compound interest rate of 26.5% per annum subject to review from time to time in line with the prevailing market conditions paragraph 18 of the same affidavit stated that the unpaid outstanding amount of the loan with interest as at January 31, 2001 was N5,546,692.07 which is now being claimed in the Suit.

The Suit was fixed for hearing on the undefended list on 27/11/2001. The Appellant was served on 21/11/2003. The 24/11/2001 and 25/11/2001 were Saturday and Sunday respectively.

On the 27/11/2001, the Appellant was in Court and presented a letter of application for adjournment on the reasons that the Appellant was not served with sufficient time to file the notice of intention as required by the Rules. The trial Judge after looking at the letter for adjournment asked the Respondent’s Counsel his reaction which he opposed. The trial Judge did not record the application and the objection of the Respondent’s Counsel. He ignored the application for adjournment and without calling of the Respondent to prove his case or call for hearing, entered judgment in favour of the Respondent under Order 23 Rule 4 of the Rules in terms of its claim with N2,000.00 (Two Thousand Naira) cost against the Appellant.

The Appellant being dissatisfied with the Judgment and the Order for costs filed a Notice of Appeal against the Judgment.

The appeal was heard on the 12th January, 2011 and in line with the Rules and Practice of this Court, the Parties duly filed their respective briefs of argument. Counsel to the Appellant Mr. C.I. Ugwoji informed the Court that the Appellant’s undated brief of Argument was filed on 17/8/2005 and the Appellant’s Reply Brief is dated 3/10/08 and filed on 7/10/08. Counsel adopted the two briefs of argument and urged the Court to allow the appeal.

The Respondent even though served with hearing notice on 6/1/11 was not represented in Court by Counsel, his brief of argument which is undated was deemed filed on 23/9/08 is deemed argued under Order 17 Rule 9(4) of the Court of appeal Rules.

The Appellant formulated the following Issues for determination.

1) Whether the Appellant was allowed the statutory period required to file the notice of intention to defend under Order 23 Rule 3 of the High Court (Civil Procedure) Rules 2001 of Abia State High Court before Judgment was entered.

2) Whether there was fair hearing or hearing at all on the 27th of November, 2001 when the Suit was fixed for hearing.

3) Whether the Appellant neglected to file Notice of Intention to defend under Order 23 Rule 3 of the Abia State High Court (Civil Procedure) Rules 2001.

4) Whether the Court below has Jurisdiction to hear and give Judgment in the Suit when the Suit is incompetent or was there a competent Suit before the trial Court having been brought under a repealed law.