Olasunkanmi Greg Agbabiaka V. First Bank of Nig. Plc. (2006)

LawGlobal-Hub Lead Judgment Report

SOTONYE DENTON WEST, J.C.A.,

The Respondent in this Appeal who was the Plaintiff in the High Court of Lagos State, claimed in that Court as per its Writ of Summons and Amended Statement of Claim, for:-

1) An Order for the specific performance of the agreement between the Plaintiff and the Defendant (i.e) that the Defendant should forthwith deliver the Certificate of Occupancy in respect of the property at No. 22, Akinbaiye Street, Isolo, Lagos to the Plaintiff.

2) The total debt of the sum of N844, 207: 06k as at the 17th June 1992.

3) 15% interest on the total sum owed from 29 January 1985 until judgment and 10% thereafter until the entire judgment debt is obtained.

4) Cost as this Honorable Court may deem fit and proper to award in the circumstance.

The Respondent also filed an Application in the lower court for Summary Judgment under Orders 10 and 11, Rules 1 and 2 of the High Court of Lagos State Civil Procedure Rules of 1972 and under the inherent jurisdiction of the honorable court with a 14 paragraph Affidavit and 9 Exhibits A1-A8 and Exhibit B.

The Appellant herein, who was the Defendant in lower Court, filed a 14 paragraph Affidavit Showing Cause. He attached no Exhibit to his Affidavit.

In His Ruling of July 18, 1997, containing the final judgment, the learned the trial judge, Kekere-Ekun J. of the High Court of Lagos State as she then was stated inter alia;

‘In the circumstance, judgment is hereby entered in favor of the plaintiff against the Defendant in the sum of N844, 207: 00k being the cumulative principal and interest due to the Plaintiff as at 17th June, 1992 as a result of banking facilities (term loan and overdraft) granted at the request and instance of the Defendant or the sum of N180, 000: 00k of the cumulative sum.

The Defendant is further ordered to pay to the Plaintiff interest on the said loan at the rate of 15% per annum from 17th June, 1992 until judgment and thereafter at the rate of 6% per annum until the whole sum is finally liquidated.’

The Appellant dissatisfied with the Judgment of the trial Court filed the Notice of Appeal dated the 25th day of August, 1997, wherein four grounds of Appeal were set out.

The Learned Counsel for the Appellant filed an Amended Appellant’s Brief on the 12th of November, 2003 and also formulated four issues for determination in the Appeal which accommodated the four grounds of Appeal earlier raised. The issues are:-

‘(i) Whether the Appellant was not denied a fair hearing by the learned trial judge who decided to hear the Motion for Summary Judgment against the Appellant in the absence of the Appellant and his Counsel on a day fixed by the Court Clerk or Registrar for mention and not for the hearing of the said Motion.