Johnbull Adams Nigeria Limited & Ors. V. Isoko Community Bank Limited (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment)

The respondent as plaintiff initiated proceedings under the undefended list at the Registry of the High Court of Justice, Oleh, on the 24th day of April, 2007.

Leave was granted to the respondent to issue and serve writ of summons and other processes on the defendants in Lagos and to place the suit on the undefended list on 24/5/07. The claim of the respondent as endorsed on the writ of summons is as follows:-

1. The sum of N1,710,000.00 (One million, seven hundred and ten thousand naira) being the amount outstanding inclusive of the interest on the investment facility granted the 1st defendant by the plaintiff.
2. The appellants filed several notices of intention to defend the suit at the lower court. The first filed on 12/7/09 was on behalf of the 1st and 2nd appellants, the second filed on 17/7/09 was on behalf of all the appellants and the third filed on 19/10/09 was on behalf of the 1st and 2nd appellants only.

The proceedings commenced on 24/5/09 when the suit was placed on the undefended list and the writ of summons ordered to be marked undefended by the lower court. (See pages 71-72 of the record). On 3/7 /07 judgment was entered against the 3rd appellant, 3rd appellant having failed to file a notice of intention to defend and an affidavit disclosing a defence on the merit inspite of service of the processes of the respondent on the 3rd appellant on 5/6/07. Counsel for the appellant admitted that the 3rd appellant had no defence (See page 72 of the record).

Hearing of the suit against 1st and 2nd appellants was adjourned to 18/7/07. (Page 72 of the record). The suit was adjourned on many occasions principally at the instance of the appellants from 18/7 /07 to 8/8/07, from 8/8/09 to 24/10/09, from 24/10/07 to 21/11/07, from 21/11/09 to 18/12/2007. On 21/2/08 appellants’ counsel addressed the court after his application to further adjourn the proceedings was refused by the lower court upon the opposition of the respondent. (See pages 77 – 78 of the record).

The trial court adjourned for judgment to 8/4/08 after arguments have been taken from both counsel. On the 8/4/08 the lower court delivered a considered judgment which was entered in favour of the respondent. (See pages 79 – 83 of the record).

The appellant being dissatisfied with the judgment of the lower court filed a Notice and Grounds of Appeal dated 14/4/08 (See pages 84 – 86 of the record).

The appellants’ notice of appeal contain five grounds to wit:

“GROUND (1) THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE HELD THAT THE DEFENDANTS/APPELLANTS WERE INDEBTED TO THE PLAINTIFF WHEN THERE IS NO EVIDENCE TO THE EFFECT.

PARTICULARS:

1. The Plaintiff tendered Exhibit “D” the statement of account No.INV084 opened by the plaintiff Bank on the 21st day of June, 2001 but was operated between the 29th of January 2001, to March 2004.
2. There is no evidence that the Defendants operated the said Account No.INV084 with the Plaintiff Bank.
3. The statement of account of the 1st Defendant which was opened and operated by the Defendants and through which the Defendants applied for the loan facility was not before the court. Yet judgment was given in favour of the Plaintiff.

GROUND (2) THE TRIAL JUDGE ERRED ON THE FACTS WHEN HE DID NOT PROPERLY EVALUATE THE EVIDENCE BEFORE TRANSFERRING THE MATTER TO THE UNDEFENDED LIST.

PARTICULARS:

1. The Plaintiff’s Exhibit “D”, statement of account No.INV084, from 1st January, 2001, to December 2004 was exhibited while the said account was opened by the plaintiff on the 21st day of June, 2001.
2. The said account was opened with a debit entry of N400,000.00 without evidence of the source of the money and before the account was opened on the 29th day of January, 2001.
3. The Statement of Account of the 1st Defendant, Account No.2833 through which the loan facility was granted was not exhibited even when allusion was made to it in the affidavit, yet the learned trial judge went ahead to place the matter in the undefended list.
4. The entries in exhibit “D” did not reflect the transaction between the parties.

GROUND (3) THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE REFUSED TO ENTERTAIN THE COUNTER AFFIDAVIT OF THE DEFENDANTS AND THE NOTICE OF INTENTION TO DEFEND.

PARTICULARS: