Owena Mass Transportation Company Limited V. Enterprises Bank Limited (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SOTONYE DENTON-WEST, J.C.A. (Delivering the leading Judgment)

This appeal stems from the judgment of Hon. Justice T. O. Osoba of the Ondo High Court of justice delivered on 15th of February, 2005. The Defendant being dissatisfied with the said judgment has appealed to this court.

From the records of this appeal, the Respondent as the Plaintiff at the trial court had commenced an action against the Appellant as the Defendant, by a writ of summons under undefended list dated 14th day of March, 2003 and filed on 30th October, 2003 but served by the order of the Court dated 10th February, 2003, the Plaintiff in the lower Court claimed against the Defendant the followings:

1. The Plaintiff’s claim against the Defendant is for sum of N705,898.85 being the balance as at September 2011 of loan/overdraft facility advanced by the Plaintiff to Defendant at the letters’ of request, which credit facility Defendant have refused to repay despite repeated demand.

The Plaintiff also claims interest in the said sum of N705,898.85 at the rate of 30% from September, 2001 till the date of judgment and thereafter at the rate of 10% until judgment debt is wholly and entirely liquidated.

The Defendant filed a notice of intention to defend the suit on 2nd day of April, 2003, after the argument of both counsel on 9th day of April, 2003 the Court ordered the suit to be transferred to the General Cause list and that the parties should file their pleadings.

The Plaintiff’s statement of claim dated 17th April, 2003 was filed the same day while the Defendant’s statement of defence dated 20th May, 2003 was filed on 21st day of May, 2003.

In the course of trial the Plaintiff sought to amend its statement of claim and this application was heard on 25th day of October, 2004 and granted the same date and after evidence of both parties and their addresses, the Trial Court delivered its Judgment on 15th day of February, 2005.

The Defendant being dissatisfied with the judgment of the Trial Court delivered on 15th February, 2005, filed a Notice and Grounds of Appeal dated 16th day of February, 2005 to this court.

The parties in this appeal filed and exchanged their respective briefs of argument. The Appellant in his brief of argument dated and filed on 15th January, 2013 submitted the following 4 issues for determination:

1. Whether the onus of proof of a loan of N500,000 purportedly granted by the Plaintiff to Defendant is one the Plaintiff and whether by the confirmation of the PW1 under cross examination that the said N500,000 of 23rd day of May, 2000 was a lodgment by the Defendant, is an admission.

Ground 1, 2 & 3.

2. Whether by virtue of Exhibit ‘A’ without an offer, acceptance and consideration can be said to exist between the Plaintiff and the Defendant as at 23rd day of May, 2000.

Ground 4.

3. Whether or not Exhibit ‘C’ is rightly admitted in evidence by the Trial court and whether the Trial court rightly raised the issue of overdrawing the Defendant account when no pleading, evidence was led to it. Ground 5 & 6.
4. Whether there were sufficient materials or legal basis in arriving at 3% interest rate where C.B.N. regulations on interest rate vary from time to time or from year to year.

Ground 7.

On his own part, the Respondent counsel in his brief of argument dated 31st December 2012 but filed on 4th January, 2013 raised and argued a preliminary objection on the competence of the Appellant’s ground vii of the Notice of Appeal and issue 4 formulated thereon, on the premise that the ground and issue were not controverted at the trial and proceedings of the lower court and since these were being raised for the first time on appeal, and without the leave of this court, thereby liable to be struck out. ANATOGU v. IWEKA II (1995) 8 (Pt. 415) p. 573 was referred to.

It was submitted that the Appellant by order of the court for amendment of its brief of argument, filed its amended brief of argument dated 14/6/2011 and granted on the 26th day of September, 2011 which argument was partly based on the 7 grounds of the notice of Appeal complained against the judgment of the Lower court.