Dr. Ignatius O. Okplewu V. James O. Okplewu & Anor. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUMAI BAYANG AKAAHS, J.C.A. (Delivering the Leading Judgment)

Mr. James Oriba Okplewu is the Managing Director of Jadopera Nigeria Limited, a registered money lender. On 31st January, 2006, 27th June 2008 and 28th July, 2008, the Defendant, Dr. Ignatius Ogabor Okplewu applied for and was granted the following sums of money respectively:

a. N387,000.00 (Three Hundred and Eighty-Seven Thousand Naira)

b. N46,000.00 (Fifty-Six Thousand Naira) and

c. N23,000.00 (Twenty-Three Thousand Naira)

The loans taken on 27th June, 2008 and 24th July, 2008 attracted an interest of 15% while the one given on 31st January, 2006 attracted 10% interest rate. When the loans were due for repayment and the Defendant did not discharge his obligation as agreed the matter was reported to the Divisional Police Station, Ogoja where the Defendant gave an undertaking to liquidate the loans by instalment and paid up to N201,655.00 (Two Hundred and One Thousand, Six Hundred and Fifty-five naira) only leaving a balance of N1,927,370.00 (One Million, Nine Hundred and Twenty-Seven Thousand, Three Hundred and Seventy Naira) yet to be paid. This amount represented the principal sum and interest that accrued as at 27th July, 2009. The claimants took out a Writ of Summons on 16/4/2010 claiming this amount.

The Defendant denied the claim and filed Notice of Intention to Defend the action. In the affidavit in support of his intention to defend, the defendant alleged that except for a single transaction, he sought financial assistance from the 1st Plaintiff who gave him a total of N110,000.00 in August 2007. When he sought another financial assistance in 2008 the 1st Claimant refused to oblige. It was then he collected N40,000.00 but was made to sign an agreement form for N46,000.00 and this the 1st claimant explained represented the principal sum plus the 15% interest chargeable on the loan. He said he had paid the loan he collected and the financial assistance the 1st Claimant gave him but denied ever applying or collecting a loan of N387,000.00 and another N23,000.00.

The learned trial judge considered the Notice of Intention to Defend vis-a-vis the documents attached which supported the application to place the suit in the Undefended List and proceeded to enter judgment for the sum of N1,927,370.00 in favour of the Claimants against the Defendant.

The defendant felt dissatisfied and appealed against the judgment on 27/5/2010 in his Notice of Appeal which contained two grounds of appeal from which he distilled the following issue for determination:

“Whether the right to fair hearing of the appellant was not breached when the trial judge proceeded to deciding the issue between the parties on the face of the apparent conflicts in the affidavits of both parties without calling oral evidence.”

The respondents also formulated a single issue for determination which is:

“Whether the Lower Court was right in entering judgment for the respondents in the light of the affidavit of defence filed by the appellant at the lower court.”

I prefer the issue framed by the respondent because the case was decided based on the Undefended List Procedure. Learned counsel for the appellant conceded to the fact that it is the learned trial judge’s discretion to say whether or not a triable issue has been disclosed in an affidavit in support of the Notice of Intention to Defend. Learned counsel argued that a defendant who has taken due and timely steps to defend must be given opportunity and be allowed to contest the action and must not be deprived of the chances of ventilating his grievances in response to the claim. He said anything to the contrary would amount to being shut out from justice which is tantamount to denial of fair hearing and therefore against the audi alteram partem rule and placed reliance on IBETO METRO TRADE LTD. V. GULF BANK OF NIG. PLC (2008) ALL FWLR (PT.402) 1092 AT 1107 AND KOLO V. TAIBU (2001) 4 NWLR (PT.702) 200. He said the appellant had alleged that his signature was forged and this was a basis for transferring the suit to the general cause list.

For the respondent it was submitted that merely filing an affidavit of defence is not the sole ground upon which a court will transfer an undefended cause list to the general cause list. learned counsel also argued that a mere denial by the appellant that he is owing the Respondents in the light of clear evidence of his indebtedness cannot transmute to a defence on the merit. On the issue of the disputed signature, it is the submission of learned counsel that it is within the power of the trial court to compare disputed document with other documents in order to form an opinion on the signature.