Gbenga Bodunde & Anor V. Staff Co-operative Investment And Credit Society Limited & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

CHINWE EUGENIA IYIZOBA, J.C.A (Delivering the Leading Judgment)

The Respondent herein as plaintiff took out a summons in the undefended list against the appellants herein as 3rd and 4th defendants and three others in suit no HIL/109/06 at the High Court of Osun State, Ilesa claiming against them jointly and or severally as follows:

‘1. AN ORDER OF COURT directing the immediate payment to the Plaintiff of the sum (N5,807,600.00K) FIVE MILLION, EIGHT HUNDRED AND SEVEN THOUSSAND, SIX HUNDRED NAIRA ONLY being outstanding debt, owed the plaintiff by the Defendants which transaction took place at Ilesa, within the jurisdiction of this Honourable Court as shown in the acknowledgment of debt and undertaking to liquidate same dated 28th day of September,2006.

2. Interest on the said (N5, 807,600.00K) FIVE MILLION, EIGHT HUNDRED AND SEVEN THOUSAND,SIX HUNDRED NAIRA ONLY, at the rate of 10% per annum with effect from 1st November 2006 until judgment and final liquidation of the whole debt-
3. AN ORDER OF COURT for the payment of the sum (N200,000.00K) TWO HUNDRED THOUSAND NAIRA ONLY by the Defendants to the plaintiff being professional fees paid by the Plaintiff to its Solicitors in respect of this action for the recovery of the said debt of (N5,807,600.00K) FIVE MILLION, EIGHT HUNDRED AND SEVEN THOUSAND, SIX HUNDRED NAIRA ONLY

The Plaintiff filed an Affidavit in Support of the Summons and to this affidavit; she attached a document entitled “Acknowledgment of Debt and Undertaking to Liquidate Same”.

All the defendants entered a single memorandum of appearance and also filed ‘affidavit disclosing a defence on the merit’.

The affidavit explained the circumstances under which the respondent’s Lawyer (O.C. Ogbewe, Esq.) had brought an already prepared agreement in the presence of men of the Monitoring Unit Oke-Fia, Osogbo and had forced them to sign on the threat that none of them would be released until the agreement was signed. The appellants contended further in the affidavit that the attestation done by the magistrate, E. O. Akintayo was a fraud.

They denied applying for any loan from the Plaintiff and gave details of credit advancement procedures applicable in the Plaintiffs organization. The affidavit explained further that the various documents allegedly used as collaterals in the attached undertaking exhibited to the Plaintiff s affidavit in support of the summons which had been fraudulently obtained with force; do not actually belong to any of the defendants.

The learned trial judge after considering the arguments transferred the suit to the general cause list and a date was fixed for hearing without pleadings. After the oral hearing of the parties and their witnesses, the court found that Exhibit E (the Acknowledgment of debt and undertaking to liquidate same) was fraudulently obtained. The court held further that:

“… the contents of Exhibit I-J which are Certified True Copies of entries made in the Police diary under the evidence of 1st DW Inspector Gregory Kwewe, show clearly that as at 28th September, 2006 when it was said to have been made in lawyer’s chambers at Ilesa by the Defendants, the Defendants were actually in Police Custody at various Police Stations in Osogbo. The conduct of all those who contributed to the preparations of Exhibit E which is produced to pervert the cause of Justice is condemnable…”

The court further observed:

“The plaintiff is relying on Exhibits C1 to C8 being cheques of the plaintiff allegedly cashed by the defendants. Out of the I cheques, 4th defendant agreed in his evidence to have fraudulently cashed Exhibit C4 which is to the sum of N554,500.00. The 3rd defendant also agreed to have fraudulently cashed two of the cheques Exhibits C5 and C6 which is to the tune of N1,970, 500.00. The meaning of this is that the plaintiff has clearly proved the loss of N2,525,000.00. This leaves a balance of N3,282,600.00 to be proved. There is no evidence linking either the 1st defendant or the 2nd defendant to the remaining five cheques. There is no evidence before me linking them to exhibits G5, G7 and G8 which are cheques proved to have been fraudulently cashed.”

At page 83 of the record, the learned trial judge held:

“In the circumstances, I hereby enter judgment in favour of the plaintiff but against each of the 3rd and 4th defendants in the sum of N2, 525, 000.00k being the indebtedness to the plaintiff’ other legs of the claim are dismissed.”

It is against this judgment that the 3rd and 4th Defendants have appealed to this court. The original grounds of appeal consist of six grounds and are dated 24th December 2007 while with leave of the Court dated 4th May 2009; the defendant filed seven additional grounds of appeal. Out of the thirteen grounds of appeal, the defendant now appellant formulated three issues for determination. They are: