CORAM
Elfrieda Oluwayemisi Williams-Dawodu JCA
Ugochukwu Anthony Ogakwu JCA
Jamilu Yammama Tukur JCA
PARTIES
CLESON INVESTMENT LIMITED
APPELLANTS
UNITY BANK PLC
RESPONDENTS
AREA(S) OF LAW
APPEAL, BANKING LAW, CONTRACT, EVIDENCE, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
The Appellant took a loan of Fifty Million (N50,000,000.00) Naira from the Respondent and according to the Appellant the interest rate was above the Central Bank’s approved rate for banks and financial houses and the Respondent notwithstanding further increased it. Appellant claims there was a dispute between both parties in that regard though the Appellant had paid some part of the loan.
The Respondent commenced the suit at the Court below under the Undefended List Procedure and judgment therein delivered in favour of the Respondent culminated into this appeal.
HELD
Appeal dismissed
ISSUES
1. Whether or not the Court below was right in determining the case of the Respondent under the Undefended List Procedure and granting its reliefs given the evidence before it?
RATIONES DECIDENDI
UNDEFENDED LIST PROCEDURE – MEANING OF UNDEFENDED LIST PROCEDURE – CONDUCT OF A PARTY SEEKING TO DEFEND A MATTER LISTED UNDER THE UNDEFENDED LIST PROCEDURE
Judicial authorities abound on what the Undefended List procedure means by the apex Court as well as this Court. Put simply, it is a procedure which enables a Plaintiff to obtain judgment in a suit for a liquidated sum within the shortest possible time on affidavit evidence without the technicalities of pleadings, where the Defendant has no defence to the suit. See the cases of EKULO FARMS LTD. V. UNION BANK OF NIG. PLC.2006 4 S.C. PT.II P. 22-24, CHIEF AKINYEMI V. GOVERNOR OF OYO STATE & ANOR. 2003 FWLR PT. 40 P. 1683, FMG V. SANNI 1990 4 NWLR PT 147 P.685 and the learned author, Lai Oshitokunbo Oshisanya in ALMANAC OF CONTEMPORARY JUDICIAL RESTATEMENT P. 271. It is a procedure for economy of time and resources and to ensure that the Defendant is disallowed from putting the Plaintiff through unnecessary and avoidable expense of proving the obvious. However, where the Defendant decides to challenge the claim of the Plaintiff as it would seem herein, he must file a notice of intention to defend the suit together with an affidavit disclosing a defence on the merit. The Defendant’s affidavit with the notice of intention must disclose a prima facie defence. Authorities abound on what is expected and acceptable as good defence which ought to cause the trial Judge to grant leave for a Defendant to defend. Where this is the case, the action is removed from the Undefended list to the General or Ordinary Cause list. See the case of FMG & ORS V. SANI 1990 4NWLR PT. 147 P. 699. Order 21 of the High Court of the Federal Capital Territory, Abuja, Civil Procedure Rules, 2004 provides for the Undefended list procedure. – Per E. O. Williams-Dawodu, J.C.A
UNDEFENDED LIST PROCEDURE – THE CLAIM THE COURTS CAN CONSIDER UNDER THE UNDEFENDED LIST PROCEDURE
The claim, one agrees with the Court below was a liquidated claim from the foregoing which the Court was properly able to consider under the Undefended List Procedure as it was ascertainable, specific sum, due and payable. See the case of MAJA V. SAMOURIS 2002 2 SCNJ 39. – Per E. O. Williams-Dawodu, J.C.A
CONTRACT – WHERE A PARTY SEEKS TO CLAIM ILLEGALITY OF CONTRACT AS A DEFENCE
The Appellant’s argument that the contract was an illegality, indeed could not avail it. It is trite that a party who has benefitted from a contract cannot evade his obligations thereunder by relying on an allegation of illegality. For illegality to avail a party it must be ex facie. The apex Court held in the case of W.C.C LTD V. BATALHA 2006 9 NWLR PT. 986 P. 595 as follows:
“The law is also settled that whoever intends to claim illegality as a defence must not only plead the illegality he is also required to set out the particulars of the illegality in his pleadings. This requirement is mandatory in all cases where the contract is not ex facie illegal and the question of illegality depends on the circumstances of the case.”
The Appellant herein failed to set out the particulars of the allegation that the interest rates were beyond what the Central Bank of Nigeria approved for Commercial Banks and it was not substantiated in any way. See also the cases of UKAH & ORS V. ONYIA & ORS 2016 LPELR-CA/E/295/2008 and OGUNTUWASE V. JEGEDE 2015 LPELR-CA/EK/37/2014. From the foregoing, one could not agree more with the Court below. – Per E. O. Williams-Dawodu, J.C.A
LEGAL PRACTITIONER – THE PERSON WHO QUALIFIES AS A LEGAL PRACTITIONER
By the combined effect of Sections 2(1) and 24 of the Legal Practitioners’ Act, it is apparent that for any person to qualify as a legal practitioner within the meaning of Section 24, he must have attained the status and recognition of having been called to the Nigerian Bar and his name must be on the roll of legal practitioners. – Per E. O. Williams-Dawodu, J.C.A
CASES CITED
STATUTES REFERRED TO