First Bank Nigeria PLC V. Cornelius Ozoegbula (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ITA G. MBABA J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of Imo State High Court in Suit No HOW/430/2007, delivered on 7/9/2007 by Hon Justice C. M. I. Egole, whereof the learned trial Judge entered judgment for the plaintiff (Respondent herein) in the Suit, earlier placed on the Undefended List for hearing and determination.

The Plaintiff had on 9/8/07 claimed as follows, as per the writ (placed on the Undefended List):

“(a) The sum of N4,659,635.50 (four million Six Hundred and fifty Nine Thousand, six hundred and thirty five Naira, fifty kobo) being money withdrawn from the Current Account No.2922010032799 in the 1st Defendant Bank belonging to the Estate of Late Chief Dominic Ozegbula of Umuokuzu Awara in the Ohaji/Egbema Local Government Area of Imo State, without the consent and permission of the plaintiff.

(b) Interest in the said sum of N4,659, 635.50 at the rate of 21% per annum or at the prevailing Commercial Bank rate, from 1st day of March 2007 till judgment is given,”?

On 7/9/2007, when the matter come up for hearing, the 1st Defendant (Appellant herein) was represented by one Duru, T. O. (Head of O. P. S. of the Bank) and K. A. Orjiako Esq, as Counsel. There was no appearance for 2nd Defendant. 1st Defendant’s Counsel prayed for adjournment saying, he got instruction from the Bank, through a call that morning to represent the Bank.

The application was opposed by Ugorji Esq, Counsel for the plaintiff, on the ground that the matter was fought on the undefended list procedure; that none of the Defendants had filed any notice of intention to defend the Suit and affidavit, therefor, as required by order 23 Rule 3(1) of the High Court (Civil procedure) Rules.

The trial Court agreed with him and ruled in favour of the plaintiff, entering judgment for the plaintiff in the said sum of Four Million, Six Hundred and Fifty Nine Thousand, Six Hundred and Thirty Five Naira, Fifty Kobo (N4,659,635.50). The claim for interest was rejected, but cost of N5,000.00 (five thousand Naira) was awarded to the Plaintiff.

That is the judgment Appellant is appealing against, as per the notice of Appeal, filed on 11/9/2007, disclosing three (3) grounds of appeal, as per pages 24-26 of the Records of Appeal.

Appellant later Amended the Notice of Appeal and, finally, relied on a further Amended Notice of Appeal filed on 16/1/2013, with the leave of this Court, wherein it formulated Five (5) grounds of Appeal. Appellant filed Amended brief of Argument on 16/1/2013 and distilled three (3) issues for determination, as follows:

“(1) whether the non service of the process on the Appellant at its registered office has not denied the trial Court of its jurisdiction to hear the matter (Ground 1.)

(2)whether the affidavit evidence supported the claim and is such that can be heard on the undefended list. (Ground 2 and 3)

(3)Whether by Exhibits exhibited, the 1st Respondent was granted letters of Administration over the money in custody of the Appellant in account No. 2922010032799 and therefore entitled to administer the said account. “Grounds 4 and 5)

The 1st Respondent field his Brief on 18/7/12 which was deemed duly filed on 28/11/12. He raised objection to the appeal on pages 2 and 3 of the brief but filed no separate Notice of appeal to activate it. In the Brief the Respondent distilled two (2) Issues for determination: