Quality Computronics System Ltd & Anor V. Toki Rainbow Community Bank Ltd (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MOHAMMED LADAN TSAMIYA, J.C.A.: (Delivering the Leading Judgment)

This is an appeal against the judgment the Rivers State High Court (herein referred to as the trial court) sitting in Port Harcourt Judicial Division, where the plaintiff (herein referred to as the respondent) claims against the defendants (herein referred to as the appellants) as follows, through undefended list.

1. The sum of N1,580,420.73 (ONE MILLION FIVE HUNDRED AND EIGHT THOUSAND, FOUR HUNDRED AND TWENTY NAIRA, SEVENTY-THREE KOBO) being and representing principal and accrued interest element on loan and over-draft facilities as at 31st April 1999 granted by the respondent to the defendants/appellants which is due.
2. 10% per month interest on the stated sum, effective from 1/5/1999 until full and final payment on the liquidation of the said sum.

At the conclusion of the hearing, the trial judge gave judgment in favour of the respondent. Dissatisfied with the judgment of the trial court, the appellants appealed to this court on 20th July 2000 on three grounds of appeal as contained in their Notice of Appeal dated 19/7 /2000.

In accordance with the Rules of this court 1981, the appellants filed their brief of argument on 10/7/2002 and was deemed as properly filed and served on 26/5/2003 by virtue of order 3 rule 4(1) of the said Rules 1981. The respondent also filed its brief on 11/6/2003. In the appellants’ brief, raised the following issues for determination of this court:

1. Whether the learned trial Judge was right in law when he disregarded the fact that the defendant/appellant has repaid part of the debt and entered judgment in favour of the plaintiff/respondent for the total amount including interest thereon under the undefended list.
2. Whether the learned trial judge was right in law when he held the 2nd defendant/appellant liable for a loan contract between the 2nd defendant/appellant’s employer and the plaintiff/respondent.

OR

Whether there exists privity of contract between the plaintiff/respondent and the 2nd defendant/appellant.

3. Considering the weight and conflict in affidavit evidence of the parties, whether the learned trial Judge ought not to have called for oral evidence.

OR

Considering the affidavit evidence before the trial court, whether the judgment is not against the weight of affidavit evidence before the trial court.

4. Whether considering the circumstances the learned trial Judge was right in law when he awarded interest at the rate of 10% per-month on the total debt from 1st May 1999 until the full and final payment or liquidation of the debt disregarding the agreed interest of 28.5% on the overdraft as contained in Exhibit D.

The respondent in its brief filed on 11th June 2003 adopted the appellants’ issues in toto.

It is important to mention that although the appellants filed what could be termed as a joint appellants’ brief, none of them did appear in court on the date of hearing of this appeal, i.e 19/2/2013, even though service was effected on them. That being the case and pursuant to Order 6 rule 6 of this court’s Rules 2011 which empowers this court to strike out any Notice of Appeal when an appeal is not competent, or for any other sufficient reason. It says:

“0.6.r.6 The court shall have power to strike out a notice of appeal when an appeal is not competent or for any other sufficient reason.”

Rule 24 of the 1981 rules of this court enabled any party to the appeal to file a declaration in writing that he does not wish to be present in person or by a legal representative on the hearing of the appeal. Having reached this decision he shall serve a copy of such declaration upon every other party who has filed an address for service and thereupon the appeal shall be dealt with as if the party had appeared.

From the record of this appeal, there is nothing to show that this Rule 24 (supra) has been complied with by the appellants and failure to take action under this Rule 24 (supra) this court has no alternative but to invoke the provisions of the said Rule 24 (supra) and dismiss this appeal.

Similarly, at pages 42-44 of the record of appeal is the Notice of Appeal dated 19/7/2000 which is the original process. Endorsed at page 44 of the record are two stamps from the cashier’s office of Rivers State Judiciary with a date of 20/7/2000, suggesting that the Notice of Appeal was filed on the said date. The Notice of Appeal was signed by Mr. O.K. Chinda of counsel to the appellant.