Cletus I. Ilomuanya V. Lobi Bank of Nigeria Limited (1997)

LawGlobal-Hub Lead Judgment Report

MUSDAPHER, J.C.A. In the High Court of Lagos State of Nigeria holden at Ikeja and in Suit No. ID/560/88, the respondent herein took out a specially endorsed writ accompanied with a Statement of claim against the appellant as the defendant in the following terms:-

“The plaintiffs claim against the defendant is for the sum of N95,927.02 being overdraft granted to the defendant by the plaintiff at defendant’s request; and also interest at 17% per annum from 24th of July, 1987 till judgment, and at 6% per annum with effect from the date of judgment until the whole debt is fully liquidated.”

The appellant entered appearance after which the respondents filed summons for judgment in accordance with the procedure set out under Order 10 of the High Court of Lagos State Civil Procedure Rules 1972. The appellant made an affidavit purportedly showing cause why summary judgment should not be entered. The summons for judgment filed on the 7th day of June 1988 was moved and argued. In the Ruling delivered by the trial Judge on the Summons for judgment, the learned trial Judge upheld the motion and held amongst other issues thus:

“The defendant is not saying that he has paid the debt. The amount being claimed is a debit in his account though it may have gotten there through the influence of someone else. He is not putting up any legal defense which even if the defendant’s allegations are true would preclude the plaintiff from succeeding in his claim.

In the event, the application to sign a final judgment from the amount claimed succeeds.

There will be judgment for the plaintiff for the sum of N95,972.02 plus interest at the rate of 17% per annum from 24th July, 1987 till this day and thereafter at the rate of 4% per annum until the judgment debt is finally liquidated”.

Dissatisfied with the judgment, the appellant filed a Notice of Appeal containing the following grounds of appeal:-

(1) That the learned trial judge erred in law in giving judgment for the plaintiff when:-

(i) The application for judgment did not specify the amount of judgment demanded.

(ii) The application was not verified on oath as to:-

(a) cause of action

(b) the amount claimed as required by Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules, 1972.

(2) That the learned trial Judge erred in law entering the judgment for the plaintiff under Order 10 rule 1(a) of the High Court of Lagos State (Civil Procedure) Rules 1972 without taking into account the defendant’s affidavit dated 13/5/1988 setting out in full the nature of defence to the action.”

The aforementioned Notice of Appeal was filed on the 26/7/1988. Additional grounds of appeal were also filed on 1/8/1988. The additional grounds read:-