Festus Evbuomwan V. Bendel Insurance Co. Plc (2000)

LawGlobal-Hub Lead Judgment Report

AKINTAN,  J.C.A.

This is an appeal against the ruling delivered by Edokpayi J. on 18th December, 1995, sitting at Benin High Court in suit No. B/112/94. The appellant, Festus Evbuomwan was the plaintiff while the respondent, Bendel Insurance Plc., was the defendant in the action. The plaintiff’s claim against the defendant in the case was for “N350,000 being amount due to the plaintiff under a friendly loan granted to Isaac Oviasu (now deceased) as per an agreement made in Benin City on 31st day of December, 1991 and which said sum was repayable on or before the 30th May, 1992. The defendant undertook to guarantee payment of the said sum in default by Mr. Oviasu. The principal debtor could not pay before his untimely death. The plaintiff also claimed interest thereon at the rate of 20% per annum from 31st May, 1992 until judgment and thereafter at 10% per annum until the total sum is liquidated. The action was filed on 17th February, 1994.

The plaintiff contended that the respondent was served with the writ but failed to enter appearance. The plaintiff thereafter on 15th August, 1994 filed his statement of claim and this was followed by a motion for judgment. Both the statement of claim and the motion for judgment were also said to have been served on the defendant. The motion for judgment was thereafter listed for hearing before Omaje, J. sitting at a Benin High Court. The defendant was absent on the day the motion came up for hearing and it was not represented by any counsel. The plaintiff however gave evidence in support of his claim and in line with his pleadings. A witness, Paul Zaye, a bailiff at Benin High Court, gave evidence for the plaintiff. He told the court, inter alia, that on 17/5/95 he served the motion on notice on the Managing Director at the company’s registered office at the Sapele Road office of the company. The learned trial Judge there and then on 29/5/95 entered judgment for the plaintiff in the sum, of N350,000 with interest thereon at the rate of 12% from 4/6/92 up to the date of judgment on 29/5/95.

The plaintiff’s next action was that he applied ex parte for a garnishee order nisi attaching the defendant’s monies with the First Bank of Nigeria Plc. King’s Square branch, Benin City. The application was taken and granted. It was then served on the defendant and its said bankers. The defendant reacted by filing a motion on notice in which it prayed the court for extension of time within which it could apply to set aside the judgment and the garnishee order and an order setting aside the said judgment and the garnishee order. The motion was supported by a 17 paragraph affidavit deposed to by Robinson Abiyere, an Assistant Manager in charge of legal matters with the defendant company. The deponent denied in the affidavit that the defendant was ever served with any of the processes as claimed by the plaintiff. He further disclosed that as at the time of the purported service of the documents, the offices of the company were deserted due to a strike action embarked upon by the entire staff of the company.

The motion was opposed by the plaintiff and to that end, an 18 paragraph counter-affidavit was deposed to and filed by his counsel, Olugbemi Adisa. The deponent denied that the company’s premises were deserted as claimed in the affidavit in support. He then maintained that the defendant was duly served with all the processes in the case as claimed by the plaintiff.

The motion thereafter came up for hearing before Edokpayi J. When hearing in the matter started on 12/12/95, Mr. Itua, learned counsel for the applicant (now respondent) moved the motion and concluded his address on that day. Mr. Osaze-Uzzi, learned counsel for the respondent (now appellant) started his reply.

He was, however, yet to complete his address when further hearing in the matter was adjourned to 14/12/95 by the learned Judge. The applicant, however, filed a 20 paragraph further and better affidavit deposed to by the same Robinson Abiyere in support of the motion. Paragraphs 6 to 18 of the further affidavit adequately set out the appellant’s reason for the further affidavit as well as its case. The paragraphs read as follows:

“6. That on 11/9/93 I deposed to an affidavit in support of the defendant/judgment/debtor/applicant’s application to set aside the judgment dated 29/5/95 and garnishee order dated 30/3/95.

7. That after carefully going through the applicant’s file in this case with Yakubu Itua Esq. the applicant’s solicitor in this case I discovered that paragraphs 3 and 11 of my affidavit dated 11/9/95 are not correct as it is in another matter that Yakubu Itua Esq. filed a memorandum of appearance on 17/9/95.
8. That the truth of the matter is that the applicant did not brief any counsel in this suit as it did not receive court processes in this case.
9. That paragraphs 3 and 11 of my affidavit of 11/9/95 were made inadvertently without any intention to deceive this Honourable Court.
10. That the attention of the applicant was drawn to suit No. B/112/94 for the first time in September, 1995 when the applicant received the garnishee order. Exhibited as Exhibit A in my affidavit of 11/9/95.
11. That the fact of this case was that on 17/12/91 Late Isaac Oviasu trading as Vos Nigeria Company obtained credit guarantee bond No. NBCN 12655 from the applicant to cover a loan facility of N700,000.00. A copy of the credit guarantee bond is exhibited hereto as Exhibit “1”.
12. That on 21/5/92 late Issac Oviasu died.
13. That on 4/6/93 the applicant received from the respondent a letter dated 4/6/93 claiming the sum of N437, 492.00 from the applicant as principal debt and interest in accordance with the credit guarantee bond. A copy of the letter is exhibited hereto as Exhibit “2”.
14. That the applicant in accordance with the practice and especially as Isaac Oviasu was dead requested the respondent to produce evidence of the amount of loan given to late Isaac Oviasu and the respondent produced a receipt purportedly signed by late Isaac Oviasu on 30/5/92 which was a receipt issued nine days after the death of late Isaac Oviasu. The receipt is exhibited hereto as Exhibit “3”.
15. That the respondent also produced New Nigeria Bank cheque dated 30/12/91 for the sum of N250.00 purportedly issued to late Isaac Oviasu and on enquiry there was no evidence that the said cheque was in fact paid into the account of late Isaac Oviasu. The cheque is exhibited hereto as Exhibit “4”.
16. That by letter reference BIC/CM/EB/CB/6/92 dated 20/12/93 written by the applicant to the respondent, the respondent repudiated the claims of the respondent because of lack of evidence of payment to late Isaac Oviasu and because the late Isaac Oviasu and the respondent committed a fraud on the applicant by altering the terms of the credit guarantee bond No. NACB 12655.
17. That when the respondent produced the agreement he entered into with the late Isaac Oviasu it was found to be a friendly loan without interest and for the sum of only N350,000.00. The agreement is exhibited hereto as Exhibit “5”.
18. That the applicant has a good defence to the claim of the respondent contained in the respondent’s statement of claim which is exhibited hereto as Exhibit “6” and the applicant is ready to file a defence within three days if this application is granted.”

When hearing in the case resumed, Mr. Itua, learned counsel for the applicant informed the court that he had filed a further and better affidavit. He then sought leave of the court to use the facts deposed therein. His request was opposed by Mr. Osaze-Uzzi, learned counsel for the respondent (now appellant) on the ground that the respondent had started his final address and as such it was too late in the day for the applicant to reopen its case. The objection was, however, overruled by the court and the applicant was allowed to reopen its case and use the facts deposed to in the further and better affidavit. The learned Judge gave his reasons for over-ruling the objection as follows in his said ruling:

“Ruling:

Having read through the further and better affidavit and listened to counsel, there is no doubt that the further and better affidavit was not filed timorously enough but the learned counsel has in the further and better affidavit advanced reasons to the effect that he could not be properly in knowledge of the facts now deposed to in the further and better affidavit because the case file was with another counsel previously assigned to do the matter. The further and better affidavit is tending to suggest some fraud which could, if proved, vitiate any judgment based on it. In the peculiar circumstance, this court has to choose either to adhere strictly to known procedure and rule that the applicant cannot belately now come to re-open its case and use the further and better affidavit and therefore shut its eyes to the allegation of fraud in the transaction forming the basis of the judgment, or choose to relax the known procedure in the interest of justice and allow the further and better affidavit be used in the further and reopened argument of the motion by the applicant. If the applicant is allowed to use the further and better affidavit the respondent whose counsel was already replying to the argument of the motion still has the opportunity of re-acting to the further and better affidavit and his counsel will still have the chance to advance his reply to the further and better affidavit in his reply. On the other hand, if the applicant is refused the use of the further and better affidavit, his allegation suggesting fraud in the entire transaction upon which the judgment and order of garnishee both rest will remain unattended or unexamined for ever.

I am of the view that this is a rare situation in which procedural defects should be ignored in favour of the merits of the case. Consequently, the objection of the learned counsel for the respondent is refused and the applicant and its counsel are allowed to re-open the argument of the motion and to use the further and better affidavit in that further argument”

Learned counsel for the applicant thereafter reopened his case by addressing the court and making use of the new facts disclosed in the further and better affidavit. At the conclusion of his address, learned counsel for the respondent/appellant concluded his address. The ruling of the court was thereafter delivered.

The learned trial Judge found as a fact in his ruling that there was nothing on record and in the case file to show that either the statement of claim or the motion on notice for final judgment in default of appearance was served on the applicant. The learned Judge also found as a fact that the bailiff who testified at the trial of the case failed to file the usual certificate of service in the case file. He therefore came to the conclusion that the failure of the applicant to appear to defend the claim at the trial was due to the fact that none of the court processes was served on the applicant. The motion was therefore granted as prayed. The court accordingly granted an extension of time within which the applicant was to apply to set aside the judgment dated 19/5/95 and the garnishee order. Both, the judgment and the garnishee order were also set aside and N500 cost was awarded to the applicant.