ALH. ABUBAKAR SADIK DANTAMA v. UNITY BANK PLC

CORAM

PARTIES

ALH. ABUBAKAR SADIK DANTAMA APPELLANTS

UNITY BANK PLC

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Defendant/Appellant took an advance facility loan valued at N 3,000,000.00 (Three Million Naira) only from the Plaintiff/Respondent (Unity Bank, Aliyu Jodi Branch, Sokoto State). The purpose of the facility was to enable the Defendant/Appellant execute a contract awarded to him by Silame Local Government Council for the rehabilitation of road valued at N20m. The interest rate was 20% per annum and parties agreed that the interest rate was subject to change depending on prevailing market condition.

Repayment of the facility was to be made domiciled to Unity Bank but the Defendant /Appellant defaulted when he collected the payment of the contract sum directly. The Defendant /Appellant failed to repay back the loan after several demand letters were written by the Plaintiff/Respondent requesting for same.  The Plaintiff/ Respondent consequently instituted an action against the Defendant/Appellant at the Sokoto State High Court claiming the sum of N5, 121, 715.45 K being unpaid balance of the advance facility and accrued interest outstanding against the Defendant/Appellant’s account with the branch, 10% on the judgment sum until judgment is delivered, 10% on the judgment sum until it is finally liquidated and cost of action. The Defendant/Appellant filed a notice of intention to defend and counter affidavit in support of the notice of intention to defend. At the end of the trial, the trial Judge while dismissing the counter affidavit for not disclosing a triable issue, entered judgment in favour of the Plaintiff/Appellant and granted the claims sought. Dissatisfied with the judgment, the Defendant/Appellant have appealed to the Court of Appeal.

HELD

Appeal Allowed

ISSUES

1.Whether the trial Judge was right when he refused to transfer the suit to the General Cause List?

RATIONES DECIDENDI

UNDEFENDED LIST PROCEDURE – WHETHER A COURT CAN EXPAND ITS JURISDICTION BY ASSESSING INTEREST CLAIMED UNDER THE UNDEFENDED LIST PROCEDURE

“The above clearly shows that there is a real dispute as to the amount due which requires the taking of an account to determine. And since interest still has to be proved and assessed, a decision which purports to consider interest on a liquidated money demand denies the jurisdiction to the court under the undefended list procedure. A court determining a claim under the undefended list procedure cannot expand its jurisdiction by assessing interest claimed in the suit since the procedure is available for speedy judgment on a liquidated money demand only or for a debt where the defendant has no defence. See Gombe V. P. W. Oil (Nig) Ltd (1995) 6 NWLR (Pt.402) and EKERETE V. UBA PLC (2005) 9 NWLR (Pt.930) 401 at 414.” PER M. L. SHUAIBU, J.C.A

AWARD OF INTEREST – IT IS NOT RIGHT TO AWARD INTEREST PRE-DATING JUDGMENT EXCEPT WHERE PARTIES HAVE AGREED ON PAYMENT OF SAME

“In Afribank Nigeria Plc Vs Mr. Chima Akwara (2006) LPELR 199, The Supreme Court per Ogbuagu JSC held:-
“It is now settled, that except where parties have agreed on payment of interest, it is not right to award interest pre-dating the date of judgment.”PER P. A. GALINJE, J.C.A.

INTEREST ON JUDGMENT DEBT – BASIS FOR INTEREST ON JUDGMENT DEBT

“In Daniel Holdings Ltd Vs UBA (2005)23 NSCQLR 175 at 190, the Supreme Court held:-
“As for interest on judgment debt it is either based on what the parties agreed to in their contract or the current bank rate. Bank rate, issued by Central Bank of Nigeria in occasional circulars is not a matter to take judicial notice of under Evidence Act, there must be some evidence of it.”
See Ogbu & 4 Ors Vs Ani& 2 Ors (1994)7 NWLR (Pt. 355) 128, Kaduna State Transport Authority Vs Olodile (1999) 10 NWLR (Pt.622)259 at 265, Nigeria Dynamics Ltd Vs Ibrahim (2002) 8 NWLR (Pt.768) 63”. PER P. A. GALINJE, J.C.A.

CLAIM FOR PRE-JUDGMENT INTEREST – IN A CLAIM FOR PRE-JUDGMENT INTEREST, A PARTY MUST PLEAD HIS ENTITLEMENT TO THE INTEREST AND THE BASIS OF SUCH ENTITLEMENT

“Before a party can claim pre-judgment interest, he has to plead not only his entitlement to the interest, but the basis of the entitlement either by statute or contract/agreement between the parties, or under mercantile custom or under principle of the equity”. PER P. A. GALINJE, J.C.A.

CLAIM ON INTEREST – DUTY ON A PLAINTIFF IN A CLAIM FOR INTEREST TO DISCLOSE HOW HIS RIGHT TO INTEREST ACCRUED AND HOW THE RATE WAS ARRIVED AT

“Where the claim of the plaintiff includes interest it has been held by the apex court that the plaintiff must disclose in his affidavit how his right to interest accrued and how the rate thereof was arrived at. See Surveyor Akpan V Akwa Ibom Property & Investment Company Ltd [2013] LPELR – SC 96/2008.” PER T. O. AWOTOYE, J.C.A.

UNDEFENDED LIST PROCEDURE – AN UNDEFENDED LIST PROCEDURE IS NOT DESIGNED TO SHUT OUT A DEFENDANT WHO CAN ESTABLISH THAT THERE IS A TRIABLE ISSUE IN HIS AFFIDAVIT IN SUPPORT OF HIS INTENTION TO DEFEND

“It must be noted that the procedure is not designed to shut out the defendant who can show in his affidavit in support of intention to defend and that there is a triable issue. see Nishizawa V Jeth Wani (1984) 12SC 124 at 134.” PER T. O. AWOTOYE, J.C.A.

UNDEFENDED LIST PROCEDURE – PURPOSE OF THE UNDEFENDED LIST PROCEDURE – IN A DEFENCE ON THE MERIT, THE DEFENDANT IS REQUIRED TO LAY SOME FOUNDATION FOR THE EXISTENCE OF A TRIABLE ISSUE(S)

The undefended list procedure is designed to shorten and to eliminate the technicalities of pleadings. A defence on the merits for the purposes of the undefended list procedure may encompass a defence in law as well as on fact. The defendant must put forward some facts which cast doubt on the claim of the plaintiff. Thus, a defence on the merits is not the same as success of the defence in litigation. All that is required is to lay some foundation for the existence of a triable issue or issues. What constitute a defence on merit depends on the facts of the case. This is within the discretion of the court of trial which must be exercised judicially and judiciously after a full and exhaustive consideration of the affidavit in support of the notice of intension to defend”. PER M. L. SHUAIBU, J.C.A

AFFIDAVIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND – CONTENT OF AN AFFIDAVIT IN SUPPORT OF THE NOTICE OF INTENTION TO DEFEND

“It was held in a plethora of judicial decisions that the affidavit in support of the notice of intention to defend must not contain a mere general statement that the defendant has a good defence to an action. But such a general statement must be supported by particulars which if proved would constitute a defence. It is sufficient if the affidavit discloses:-
(a) a triable issue or that a difficult part of the law is involved;
(b) that there is a dispute as to the facts which ought to be tried;
(c) that there is a real dispute as to the amount due which requires the taking of an account to determine; or
(d) any other circumstances showing reasonable grounds of a bona fide defence.
See Ata Guba & Co V. Gura (Nig) Ltd (2005) 8 NWLR (Pt.927) 429 at 457.” PER M. L. SHUAIBU, J.C.A

ADDUCING EVIDENCE IN A CLAIM FOR INTEREST – DUTY ON A PARTY TO ADDUCE CREDIBLE EVIDENCE ON THE RATE OF INTEREST AGREED BY PARTIES AND THE BASIS UPON WHICH IT IS COMPUTED

“In Himma Merchants Ltd Vs Alh. Inuwa Aliyu (1994)5 NWLR (Pt.347) 667, (1994)6 SCNJ (Pt. 1)87 at 95, the same Supreme Court, per Onu JSC said:-
“The best method of satisfying a Court about the existence of any matter is by adducing credible, sufficient and satisfactory evidence about it. In the case in hand there is no evidence whatsoever about the rate of interest agreed upon by the parties and the basis upon which it is computed.” PER P. A. GALINJE, J.C.A.

CASES CITED

STATUTES REFERRED TO

1.Sokoto High Court Civil Procedure Rules

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