Ecobank Nigeria Plc V. Rev. Sister Ikung Charles Luanga (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the Cross River State High Court sitting in Ogoja delivered on 10th May, 2010.

Briefly, the facts of this case is that, the Respondent as Plaintiff in the Court below claimed that the Appellant as defendant is a Commercial Bank. The Respondent maintained a savings account with the Appellant. The Respondent deposed in her affidavit that she transferred N2m from her savings account to a fixed deposit called a Commercial Paper. The fixed deposit was for 180 days with interest at 13%.

On maturity the Respondent demanded for the principal sum and the accrued interest but none was paid. After several demands the Respondent filed a suit under the Undefended List procedure and claimed the following:-

1. N2,128,219.19 (Two Million, One Hundred and Twenty Eight Thousand, Two Hundred and Nineteen Naira, Eighteen Kobo) being principal sum kept with the bank and accrued interest as at 24/9/09.
2. 10% interest per annum on the above sum from 25/9/09 until the judgment sum is paid.

The defendant filed his intention to defend on 5th May, 2010 together with his affidavit disclosing a defence on the merit. Also filed were 2 exhibits x1, & x3. The trial Judge failed to rule on the Appellant’s intention to defend, whether it disclosed any defence on the merit. The trial Judge on 10th May, 2011 the return date entered judgment for the respondent

Being aggrieved, the Appellant filed a notice and 3 Grounds of Appeal. Also filed on 20th January, 2011 is the Appellant’s brief which was deemed properly filed and served on 27th February, 2012. In it the Appellant articulated just one issue for determination.

The Respondent filed his brief on 23rd March, 2012 and adopted the lone issue articulate by the Appellant.

The lone issue is as follows:

“whether the evidence before the learned trial Judge was such that judgment can be entered for the respondent under the Undefended List?

In his argument learned counsel for the Appellant stated that the Respondent made a withdrawal of N2m from her savings account on 3rd October, 2008 and therefore had no money to the tune of N2m to transfer as fixed deposit on 2nd April, 2009. In furtherance of this position the Appellant filed together with the affidavit two withdrawal slips and the Respondent’s statement of account showing the withdrawal.

Counsel contended that the Appellant’s affidavit together with the 2 exhibits disclosed a defence on the merit. This of course raised issues that the court ought to resolve by pleadings and oral evidence. Therefore this suit should be transferred to the General cause List. Counsel urged the court to resolve this lone issue on behalf of the Appellant and thereafter allow the appeal.

In Response, the Respondent’s learned counsel, Mathew Ojua who settled this brief gallantly conceded that the affidavit and 2 exhibits of the Appellant raised issues which can only be resolved by pleadings, oral evidence viva voce during trial in the General Cause List.

I must immediately commend the gallantry of Mathew Ojua for his gentlemanly behavior. Counsel should at all times be partners with the court in the administration of justice.

The Undefended List Procedure is adopted when it is perceived that the defendant could not possibly have any defence to the claim before the court. A suit is maintainable under the undefended List Procedure if it relates to a claim for debt or liquidated money demand. It is a procedure meant to shorten the hearing of suit. S.B.N. Plc vs Kyentu (1998) 2 NWLR pt 536 Page 41, Garba vs. Sheba Int (Nig) Ltd (2002) 1 NWLR pt 748 page 372; Haido vs. Usman (2004) 3 NWLR Pt.859 page 65.