A. I. EGBUNIKE & ANOR VS AFRICAN CONTINENTAL BANK LTD

CORAM

BELLO JUSTICE, SUPREME COURT

M.E. OGUNDARE JUSTICE, SUPREME COURT

Y.O. ADIO JUSTICE, SUPREME COURT

PARTIES

A. I. EGBUNIKEMARIA GOLD OBIAGELI EGBUNIKE(Trading as Metropolitan Paints and Chemicals Co.) APPELLANTS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Respondent’s claim against the appellants, jointly and severally as follows:- (i) the sum of N800,312.28 being balance of overdraft with compound interest at the rate of 10% per annum as at close of business on the 26th November, 1979.(ii) compound interest at the rate of 10% per annum with monthly rests until the debt is fully repaid or judgment is obtained counting from 27th November,1979.

HELD

That the sum of N800,312.28 together with compound interest at the rate of 10% per annum with monthly rests and with effect from 27/11/79 till the debt is fully paid

ISSUES

Whether it was correct in law for the court below to state that the material averments in the respondent’s pleading had all been admitted in the Amended Statement of Defence in this case.Whether, having regards to the fact that the trial in the High Court was conducted on the footing that all the averments in the Amended Statement of Claim had to be proved it was open to the Court of Appeal to have allowed the respondent’s appeal on the ground that there was no need for any witnesses to have been called to testify to the facts already admitted on the pleadings.

RATIONES DECIDENDI

UNCONTRADICTED EVIDENCE-HOW TREATED

Evidence which is unchallenged and uncontradicted, if credible, ought to be accepted as there is nothing on the other side to balance. Per Adio, JCA

PLEADING IS NOT EVIDENCE

it is sufficient to say that pleading cannot constitute evidence and a defendant who does not give or lead evidence in support of the averments in his pleading or in challenge of the evidence of the plaintiff is deemed to have accepted the facts adduced by the plaintiff notwithstanding the general traverse. Per Adio, JCA

CASES CITED

Adejumo v. Ayantegbe, (1989) 3 NWLR. (Part 110) 417Federal Capital Development Authority v. Naibi (1990) 3 N.W.LR. (Part 138) 270Lewis & Peat Ltd. v. Akhimien, (1976) 2 All NLR. (Part 1) 460Obmiami Brick & Stone (Nig.) Ltd., v. African Continental Bank Ltd. [1992] 3 N.W.L.R. (Pt. 229) 260.Mogaji v. Odofin, (1978) 4 SC. 91 at Page 93.