Mr Frank Muobike V. Mr Thomas Nwigwe (1999)

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FABIYI, J.C.A.

This is an appeal against the judgment of Ugwu, CJ. of Enugu State High Court, handed out on 18th March, 1998. Judgment was entered in favour of the Respondent and against the Appellant in the total sum claimed to wit:- N870,000 with N1,000 as costs including out of pocket expenses as well as 5% per annum interest on the judgment debt from 18/3/98 until the whole sum is liquidated.

For a proper and adequate consideration of the issues seriously at stake and canvassed in this appeal, the relevant and material facts must be assembled with some measure of considerable detail. Such facts are subsumed as follows “The Respondent herein filed his writ of summons under the undefended list on 12-1-98 claiming the sum of N870,000. He deposed to an affidavit in support of his claim. He averred that he had a series of business and other transactions with the Appellant. One of the transactions involved the sum of about N450.000 which the Appellant owed the Respondent and one Mr. Nwagba. This transaction is different from the subject matter of this suit according to the Respondent. On 30-8-96, the Appellant asked for an advance of the sum of N280,000 repayable within a month thereof. The Appellant was advanced the stated sum and he issued a Union Bank post-dated cheque, photocopy of which is Exhibit ‘A’ to the Respondent. Again, on 15-6-96, at the request of the Appellant, the Respondent was given another loan of N590,000. He issued another Union Bank post-dated cheque of N590.000. He issued another Union Bank post-dated cheque to the Respondent. Exhibit ‘B’ is a photocopy of the said cheque. The total sum contained in Exhibits ‘A’ and ‘B’ is N870,000. On 31-12-97, the Respondent’s counsel wrote a letter of demand Exhibit ‘C’ to the appellant. The letter was sent to the Appellant through NIPOST EMS speed post. Exhibit ‘D’ is the receipt issued thereof. The letter was not returned to Afam Akputa Esq, of counsel. The Appellant did not reply the letter from counsel. The Respondent finally averred that the Appellant had no defence whatsoever to his claim.

The Appellant at the trial court, filed the requisite notice of intention to defend the suit, dated 19-2-98, pursuant to order 24, Rule 9(2) of Anambra State High Court (Civil Procedure) Rules 1988 applicable to Enugu State as well as under the inherent jurisdiction of the trial court. He deposed to two separate affidavits to buttress his notice of intention to defend the suit.

In his first affidavit deposed to on 19-2-98, the Appellant averred that sometime in 1995, he took a loan of N200,000 from the Respondent for a short-term of two weeks. He issued the Plaintiff/Respondent a Progress Bank Enugu cheque, dated 20-10-95 for the sum of N280,000 to accommodate the principal and the interest of N80,000 thereon. The principal sum was obtained from one Chief S.M. Okeke at Awka. Before the end of 1995, he paid a total sum of N160,000 to the Respondent while presentation of cheque was suspended. By early 1996, he paid N100,000 cash. He did not collect any receipt for the stated cash payments. In his word, he never suspected any mischief. He said in March 1996, Chief S.M. Okeke mounted pressure on him under the pretext that the Respondent had not repaid any part of the loan to him. As a result of intimidation and pressure coupled with promise to douse the anger of Chief S.M. Okeke, he issued the plaintiff a Union Bank cheque for the sum of N590,000 postdated 15-7-96 making a total of N870,000 in cheques. About the same time, he replaced the Progress Bank cheque with Union Bank cheque because the Progress Bank had become distressed.

The appellant further averred that the amount borrowed was N200,000. Interest on the principal sum accounts for N670,000. About 9-9-96, he paid N50,000 in a Union Bank Draft to the respondent. It is Exhibit ‘A’ to his affidavit. He averred that despite his payments which amounted to N310,000, he was in October 1996 arrested and put behind the bars on the petition of Chief S.M. Okeke to police. The timely intervention of J.H.C. Okolo, Esq, SAN, saved him from prolonged incarceration. At the instance of J.H.C. Okolo, Esq, SAN, an arbitration meeting was held in Igwe Akputa’s office where it was resolved that he should pay N450,000 by March, 1997. Those in attendance, according to the appellant, were (1) Igwe Akputa, (2) J.H.C Okolo, Esq, (SAN) (3) Chief S.M. Okeke, (4) Chief Law Udechukwu, (5) Thomas Nwigwe (respondent) (6) Engr. Frank Muobike (a) (appellant). Pursuant to the arbitration, he paid N300,000 through J.H.C Okolo. Esq, (SAN) notwithstanding other payments earlier made to the respondent. The respondent, by a letter dated 26-10-97, clearly but subtly acknowledged that some payments had been made. Copy of the letter is Exhibit ‘B’. He denied owing the respondent the total amount claimed having paid the sum of N610,000 to him. He contended that he had triable issues including the issue of illegality.

In his further affidavit, the appellant further stressed the issue of illegality. He averred that he travelled with the respondent to Awka the country home of Chief S.M. Okeke along with Mr. Nwagba for the loan. He stated that he had no transaction involving N450,000 or any other transaction at all with either the plaintiff or with Mr. Nwagba or with both of them jointly. He attached a copy of Chief S.M. Okeke’s petition to police as Exhibit ‘A’. The same was made available to the appellant by the respondent under a covering letter- Exhibit ‘B’. He, as well, attached copies of receipts for payments made through the chambers of J.H.C Okolo, Esq, (SAN). Appellant stated that it dawned on him that he had unknowingly played into the hands of an organised syndicate of extortionists with the respondent as a front. He attached Exhibits “E’ and ‘F’ which he said have to do with payment of the sum of N300,000 through J.H.C Okolo, Esq. (SAN) to the respondent.

It can be gleaned from page 31 of the transcript record of appeal that on 18-3-98, the suit was heard. The parties were present and duly represented by counsel. None of the counsel uttered a word. The trial CJ then entered his judgment as follows:-

“I have gone through the affidavit of the defendant dated 19-2-98 particularly paragraphs 3 and 7 and it to quite clearly (sic) that these paragraphs are no defence to the action but they instead admitted the claim of the plaintiff of N870,000.00. Accordingly, the defendant has no defence to this action.

Judgment is therefore entered in favour of the plaintiff as follows:-

1. The defendant is to pay to the plaintiff the sum of N870,000.00 which are the value of two cheques dated 30/6/96 and 15/7/96 respectively which the defendant issued to the plaintiff but were dishonoured.
2. The defendant is to pay the plaintiff the sum of N1,000 as costs including out of pocket expenses.
3. The defendant is also to pay 5% interest on the judgment debt from today and not 15/7/96 until the whole judgment is liquidated.”

The appellant felt dissatisfied and filed his notice cum grounds of appeal against the judgment on 19-3-98 being next day to the judgment of the trial CJ. The appellant had axe to grind with the whole decision. The attendant four grounds of appeal read as follows with their particulars:-

“i. Error in Law

The trial court erred in law in refusing the appellant to defend the action when the materials placed before the trial court disclosed triable issues.

Particulars of Error in Law