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Court of Appeal – July, 2015
Legalpedia Electronic Citation LERCA/L/124/2014
Areas of Law
APPEAL, LAW OF BANKING, SUMMARY JUDGMENT, PRACTICE AND PROCEDURE
Summary of Facts
The 1st Appellant who is a customer of the Respondent obtained a contract from Alstom Nigeria Limited and consequently applied to the Respondent to issue in favour of Alstom Nigeria imited an Advance Payment Guarantee (APG) of 20% of the contract sum which amounted to N53, 194, 802.60. It was the Appellants case that although the Advance Payment Guarantee was issued by the Respondent, the 1st Appellant duly completed the contract awarded by the said Company for which the APG was issued and therefore the APG was never called in by Alstom Nigeria Limited but expired without being called in. The Appellants denied owing the Respondent. The Respondent on the other hand claimed that 1st Appellant applied for an overdraft facility of N10, 500, 000.00 being the overdrawn sum in its account with the Respondent bank and that the Appellants indebtedness stood at N17, 998, 556.64 which they have refused to pay despite repeated demands. The Respondent consequently filed a Writ of Summons and a Motion on Notice for summary Judgment, seeking an order of the court to enter final judgment against the Respondents in the sum of N17, 998,556.64k (Seventeen million, Nine Hundred and Ninety Eight Thousand, Five Hundred and fifty six Naira, Sixty-Four kobo only) with continuing interest on the same at the rate of 21% and 6% from the 30th day of April, 2012 till judgment and liquidation of the sum respectively. On being served with the processes, the Appellants filed a Memorandum of Appearance, Statement of Defence and a counter affidavit opposing the motion for Summary Judgment. After due consideration of the application and submissions of the parties, the court entered summary judgment for the Respondent. Dissatisfied, with the summary judgment, the Appellants have appealed against same.
Issues For Determination
- Whether there was an enforceable contract between the Respondent and the Appellants for the Respondent to grant the Appellants an Overdraft Facility Of ₦10,500,000.00 (Ten Million, Five Hundred Thousand Naira Only) a breach of which entitles the Respondent to damages.
- Whether having regard to the Statement of Claim, the Statement of Defence, the Affidavit in support and its Annexures and the Counter-Affidavit filed, the Appellants had, prima facie, disclosed a defence to the Respondent’s claim on the merit to entitle them to an order of unconditional leave to defend.
SUMMARY JUDGMENT PROCEDURE – ESSENCE OF A SUMMARY JUDGMENT PROCEDURE
“In the case of Thor Limited V First City Merchant Bank Limited (2006) 1 WRN, PG. 1 @ PG 18; (2005) 14 NWLR (Pt. 946) 696 @ 710-711 H-A cited by counsel for the Respondent the Supreme Court held:
“The summary judgment procedure which is similar to the undefended list procedure is designed to enable a party obtain judgment especially in cases of liquidated demand without the need for a full trial, where the other party cannot satisfy the court that it should be allowed to defend the action. The object of the order is to enable a plaintiff obtain quick judgment when there is no defence to the action. [Nishizawa Ltd v Jethwani (1984) 12 SC 234; Macaulay v Nal Merchant Bank (1990) 4 NWLR (Pt. 144)283; Pan Atlantic Shipping and Transport Agencies Ltd v Rein Mass G.M.B.H. (1997) 3 NWLR (Pt. 493) 248 referred to.]” PER C. E. IYIZOBA J.C.A
SUMMARY JUDGMENT PROCEDURE – DUTY OF A JUDGE IN DETERMINING WHETHER OR NOT A DEFENDANT HAS A GOOD DEFENCE
“In determining whether or not the defendant has a good defence, the judge is enjoined to consider the pleadings which invariably are embodied in the affidavit evidence and all the exhibits filed by the parties”. PER C. E. IYIZOBA J.C.A
WITHDRAWAL OF CASH – A VALID AND ENFORCEABLE CONTRACT IS ENTERED INTO WHEN WITHDRAWAL IS MADE ABOVE THE CASH IN A CUSTOMER’S ACCOUNT
“It is the law as submitted by Respondent’s counsel that the Respondent having allowed the Appellants to make withdrawals above the sum in the 1st Appellants’ account, a valid and enforceable contract was by the operation of extant banking procedures entered into between the Respondent and the Appellants that is enforceable against the Appellants. Lion Bank Nigeria Plc & Anor V Joseph Amaikom.” PER C. E. IYIZOBA J.C.A
PRESENTATION OF CHEQUE – IMPLICATION OF PRESENTING A CHEQUE WHEN A CUSTOMER HAS INSUFFICIENT FUNDS IN HIS ACCOUNT
“The law as stated by the Respondent is that if a customer presents a cheque and the bank pays the cheque when the customer has no money in his account, the presentation of that cheque is a request for a loan and if the cheque is honoured, the customer has borrowed the money by way of overdraft from the bank. See Ishola v. Societe General Bank (Nig) Ltd (1997) LPELR-1547(SC); ACB Ltd v Egbunike & Anor (1988) 4 NWLR (Pt. 88) 350 @ 365.” PER C. E. IYIZOBA, J.C.A
Statute Referred To
High Court of Lagos State (Civil Procedure) Rules 2012,
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