Interdrill Nigeria Limited & Anor V. United Bank For Africa Plc (2017)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The United Bank for Africa Plc (as plaintiff) took out a suit under the Undefended List procedure against the appellants in this appeal (as defendants) at the High Court of Delta State in 2001. The said plaintiff (now, respondent herein) claimed against the defendants (appellants herein), jointly and severally:

1. The sum of N17,835,802.67 (seventeen million, eight hundred and thirty five thousand, eight hundred and two Naira, sixty seven Kobo) being the outstanding debit balance in the first defendant’s account with the plaintiff as at 2nd February, 2001 which sum is due the plaintiff from an overdraft facility granted to the first defendant at the first defendant’s request and guaranteed by the second defendant, which sum the defendants have failed, neglected, omitted and/or refused to pay inspite of repeated demand.
2. 31% per annum on the said sum of N17,835,802.67 (seventeen million, eight hundred and thirty five thousand, eight hundred and two Naira, sixty seven Kobo) from February 03, 2001 until judgment and thereafter 10% per annum on the judgment sum until same is fully

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liquidated.

Satisfied, from the appellants’ Notice of Intention to defend the suit, that a defence on the merits had been made out, the Court (hereinafter, simply, referred to as “the trial Court) transferred it to the General Cause List “for hearing and determination of the case on the affidavit evidence…”

At the hearing of the suit on August 5, 2003, PW1, Kelechi Ogbonna, presented the plaintiff’s case. He was cross examined. The matter was, then, adjourned to November 3, 2003 for continuation of hearing. On that adjourned date, the appellants, though absent, wrote for an adjournment. Upon the trial Court’s refusal of the application, it foreclosed the defence and adjourned for judgment on November 20, 2003.

Prior to the date aforesaid, the appellants, strenuously, sought to arrest the judgment through a motion filed on November 10, 2003. Having heard submissions on the application on November 20, 2003, the trial Court adjourned its ruling on it to December 5, 2003.

Sequel to its order of the dismissal of the application, it proceeded, on the same day, to dismiss the plaintiff/respondents case, holding that it could not prove

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interest on the sum of N10,000,000 (Ten million Naira) only although it, still, found that the first appellant collected and utilized the said sum on the basis of Banker/Customer relationship between the parties.

The plaintiff’s appeal to the Court of Appeal, Benin Division, was successful. The Court (hereinafter, simply, referred to as “the Lower Court”) set aside the judgment of the trial Court and entered judgment in favour of the plaintiff.

The lower Court, equally, faulted the trial Court’s reason for refusing to accord probative value to the testimony of PW1 (the trial Court was of the view that, since the said witness was not in the employment of the plaintiff/Bank when the transaction was made and he was not the deponent to the accompanying affidavit, it would attach no weight to his evidence).

Aggrieved, the defendants/respondents (now, appellants) have appealed to this Court. Their two issues were framed thus:

1. Whether the law that any agent or servant can give evidence to establish any transaction (sic) into by a juristic personality is applicable to affidavit evidence
2. Whether the Court below was right when it held that

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