Rev Young Peter Onoeyo V. Union Bank Of Nigeria PLC (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

PAUL OBI ELECHI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the decision of his Lordship Hon. Justice Andrew Okon sitting at Eket High Court Akwa Ibom State, against the Ruling in suit No. HEK/UND.27/2005 delivered on the 7th November, 2005 in favour of the Respondent herein, who was the Plaintiff at the lower Court.

Dissatisfied with the decision of the lower Court, the Appellant/Applicant has now filed a Notice of Appeal dated the 15th day of November, 2005 supported with seven Grounds of Appeal.

The facts of this case are that the Defendant/Appellant on the 9th day of May, 2002 applied for and was offered an overdraft facility of N6,500,000.00 (Six Million, Five Hundred Thousand Naira) for 12 months and a loan of N4,000,000.00 (Four Million Naira) for four months, all totalling N10,500,000.00 (Ten Million, Five Hundred Thousand) by the Plaintiff/Respondent, through its letter of offer/approval dated 25th June, 2002 and same was received by the Defendant/Respondent.

The letter of offer was attached to the process filed at the lower Court and marked Exhibit A. The Appellant accepted the terms and conditions precedent to the draw-down of the said facility as expressly stated in the letter of offer. The overdraft and loan facility were applied for by the Appellant to enable him enhance the working capital of his business.

To be able to service the facilities, the Appellant deposited his title documents i.e. Certificate of Occupancy of his landed properties and also entered into two legal mortgage agreements with the Plaintiff/Respondents over his landed properties located at Eket.

In the course of time, the facilities expired and yet the Appellant failed, neglected and/or refused to liquidate the outstanding debt plus the accrued interest despite requested demands for it by the Plaintiff/Respondent. The outstanding principal sum plus interest owed by the Appellant/Defendant stood at N15,078,922.83 (Fifteen Million, Seventy-Eight Thousand, Nine Hundred and Twenty Two Naira, Eighty Three Kobo) as at 28th February, 2005. The bank statement to that effect was attached to the Court process filed at the lower Court and marked Exhibit D.

Consequent upon the failure or inability or refusal to repay the credit facilities granted to the Appellant/Defendant, since June, 2002, the Plaintiff/Respondent on the 10th day of May, 2005 commenced an action at the lower Court under the undefended list procedure to recover same.

The Learned trial Judge, his Lordship Hon. Justice Andrew E. Okon after considering the Notice of Intention to Defend of the Appellant/Defendant vis-a-vis the claim of the Plaintiff/Respondent entered judgment in favour of the Plaintiff in the sum of N15,078,922.83 and held that the Notice of Intention to Defend does not disclose any real defence.

In arguing this appeal, the Appellant/Defendant in his Brief of Argument formulated only two issues. Issue 1 was formulated from ground 1 while Issue 2 does not flow from any of the seven grounds of Appeal. No Issue or Issues were formulated or argued in respect of grounds 2-7 of his Notice of Appeal. A fortiori, the Appellant appears to have abandoned grounds 2-7 of his Notice of Appeal. In the same vein, Issue No. 2 is not tied to any ground of Appeal and therefore is of no moment. See Yadis Nigeria Ltd v. Great Nigeria Insurance Coy Ltd (2007) 30 NSQR (Pt. 1) page 495.

The two issues distilled for determination by the Appellant are:

I. Whether the learned trial judge was right to enter judgment for the Plaintiff without a consideration of the affidavit of the Defendant/Appellant disclosing a defence on the merit filed under the Rules of Court.

II. Whether the Court can validly interfere with the judgment of the lower Court.

On their own part, the Plaintiff/Respondent proposed two issues for determination as follows: