Union Bank Of Nigeria Limited V. Alhaja Bisi Edionseri (1988)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C.

This is an appeal by the Defendant Bank against the Judgment of the Court of Appeal, Lagos Division, delivered on the 13th Day of June, 1985. For reasons which will become obvious later in this judgment, it is not necessary to go into the details of the facts: only as much of the facts as would make this judgment intelligible need to be recounted.

The Plaintiff, Alhaja Bisi Edionseri, filed an action in a Lagos High Court claiming a declaration that the Defendant was not entitled to debit her account with the values of different cheques amounting to the sum of N550,000.00; an order directing the Defendant to pay the said sum into the Plaintiffs current account with the Defendant and damages for breach of contract.

As the Defendant did not file any defence within time after entering an appearance, the Plaintiff applied for judgment in default of defence under Order 24 Rule 11 of the High Court of Lagos (Civil Procedure) Rules, 1972. Thereafter the Defendant applied under Order 13 Rule 22 of the said Rules for leave to issue 3rd party notice on one Mr. S.O.S. Benson. It was deposed in the affidavit in support of the motion inter alia as follows:-

”2. That S.O.S. Benson now sought to be joined as a 3rd Party to these proceedings was in the employment of the Defendant Bank as an Assistant Manager at the Defendant Bank’s Branch at 40, Marina, Lagos at all times material to this case.

3. That in utter breach of trust and/or duty to render faithful and loyal service and/or in breach of duty the said S.O.S. Benson wrongly debited or wrongly caused to be debited the Plaintiffs account with a total amount of N550,000.00
4. That the Plaintiff has now instituted these proceedings to recover the said amount wrongfully debited and withdrawn from her account.
5. That the Defendant’s Bank is claiming indemnity against the said S.O.S. Benson in these proceedings”.

After two adjournments both the motion for judgment and leave to issue 3rd Party Notice came before Silva. J., on the 28th January, 1985. Although the Defendant’s motion for 3rd party Notice was filed ex parte, the learned Judge decided to hear the respondent’s counsel on it. He heard the motion for leave to issue 3rd Party Notice first, and adjourned the motion for judgment in default of defence. After hearing both counsel, he ruled, inter alia, as follows:

”I am inclined to grant the application to issue 3rd Party Notice and I do hereby grant same.

It is ordered that 3rd Party Notice be issued to the party named in the Defendant’s application. I will adjourn the motion for Judgment until a later date for hearing to allow the 3rd Party Notice enough time to be served.

I am mindful of the fact that proceedings may be delayed in view of the fact that no address of the 3rd Party is given in the Defendant’s application. If by the next ”adjourned” date the 3rd Party’s address is still not given I shall be constrained to hear and determine the application for judgment.

Motion for Judgment adjourned till 25/2/85.”

By a Notice of Appeal dated the 6th day of February, 1985, the Plaintiff appealed against the above order. The three grounds of appeal were as follows:

”1. The learned trial Judge erred in Law and exercised his discretion wrongly in ruling that the Plaintiff’s Motion on Notice for judgment in default of Defence shall be adjourned to a later date (25/1/85) when the Affidavit of Amos Oloruntoba Akanbi, an official of the Defendant Bank, was before him and it was quite clear from that Affidavit that the Defendant has no defence to this action.

2. The decision of the learned trial Judge to adjourn the Plaintiff’s application for judgment in default of Defence and to entertain and grant the Defendant’s application to join a Third Party is unreasonable and has done grave injustice to the Plaintiff.
3. The order joining the above-named Third Party is unreasonable and unwarranted having regard to the provisions of Order 13 rule 22.

Particulars

(a) The Defendant’s application to join a Third Party was based on the alleged ground ”that the Defendant’s Bank is claiming indemnity against the said S.O.S. Benson in these proceedings”.