Eco Bank Plc V. Hon Lukpata John Udo (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A (Delivering the Leading Judgment)

This appeal is against the decision of the High Court of Cross River State Holden at Ogoja contained in the Judgment delivered on 22nd June, 2010, in suit No. HJ/28/2011 commenced by the respondent herein as claimant by filing a motion exparte on 1st June, 2010 for the Order placing the suit for hearing under the undefended list.

The High Court (hereinafter called the lower court) granted the application on 4th June, 2010 and leave was granted to the respondent that the suit be placed for hearing under the un-defendant list. The writ filed therein was accordingly marked and the processes were served on the appellant.

The claim of the respondent as endorsed on the writ of summons is for:

“a. The sum of four hundred and fifty thousand naira only N450,000.00 being the balance of the sum of N600, 00.00 claimant invested with defendant under its commercial paper investment which has become due since November, 16th 2009.

b. 14% agreed interest on the sum stated in paragraph a above from 16th November 2009 till judgment is delivered.

c. 10% post judgment interest from the date of judgment until the total amount is finally determined.

Upon service of the process, the appellant filed a Notice of intention to defend on 21st June, 2010 together with “Affidavit disclosing a defence on the Merit.”

In the Judgment of 22nd June 2010, the lower court reached a conclusion that the content of appellant’s affidavit did not amount to a defence and proceeded to give judgment in favour of the respondent interms of the reliefs on the writ of summons.

Aggrieved by the decision of the lower Court the appellant filed a Notice of Appeal on 22nd July, 2010 with three grounds of appeal and in the appellants’ Brief of Argument filed on 8th March 2011 but deemed as properly filed on 18th May, 2011, the following lone issue was formulate.

“Whether, having regard to the affidavits evidence before the Court judgment can be entered for the respondent under the undefended list.”

Also in the respondents’ brief of Argument filed on 6th April, 2011 but deemed as properly filed on 18h May 2011, one issue was also formulated as follows:

“Whether the judgment of the lower court is against the weight of evidence in the light of the affidavit as defence filed by the Appellant in the lower court.”

On the issue raised by the appellant Samson Onah Esq. learned counsel who prepared the brief contended that the lower court should not have entered judgment for the respondent under the undefended list since the respondent’s affidavit raised triable issues and disclosed a defence to the action which should have necessitated the suit being transferred to the general cause list. The learned counsel submitted further that the appellant was only expected to raised a triable issue in the Notice of intention to defend, citing Amede V. UBA (2009) All FWLR (Pt.459) 479. On the guidelines for granting leave to defend an action under the undefended list, he cited True Grace Engr. Ltd. Vs Lead Bank Plc (2008) All FWLR (Pt. 409) 451.