CALISTUS OBITUDE V ONYESOM COMMUNITY BANK LTD.

CORAM

PARTIES

CALISTUS OBITUDE APPELLANTS

ONYESOM COMMUNITY BANK LTD.

RESPONDENTS 

AREA(S) OF LAW

SUMMARY OF FACTS

The Plaintiff/Respondent granted an overdraft facility of N7, 400,595.53 (Seven Million, Four Hundred Thousand, Five Hundred and Ninety-Five Naira, Fifty-Three Kobo) to the Defendant/Appellant. The Plaintiff made repeated demands for the sum but the Defendant/Appellant failed to liquidate the sum hence the Plaintiff/Respondent instituted this action. The Defendant/Appellant filed a motion on notice praying the court to strike out the suit on grounds that it was premature that the Plaintiff did not give a demand notice before instituting the action. The trial Court entered judgment for the Plaintiff/Respondent in the said sum with interest at the rate of 5% per annum from the date of judgment until the total payment of the judgment debt. Dissatisfied with the trial Court’s decision, the Defendant/Appellant appealed to Court of Appeal where the appeal was dismissed. The Defendant/Appellant subsequently appealed to this Court.

HELD

Appeal Dismissed.

ISSUES

1. Was the Lower Court right, having regard to the affidavit evidence/exhibits and admissions in the case in upholding the judgment of the trial Court?

RATIONES DECIDENDI

PROSECUTION OF CASES-DUTY OF PARTIES THERETO

“There should be consistency in prosecuting cases at the trial court as well as on appeal. There should be no somersault”. PER FABIYI, JSC

CONCURRENT FINDINGS OF LOWER COURTS-WHEN THE SUPREME COURT CAN DISTURB SAME

“The Supreme Court will not ordinarily disturb concurrent findings of fact by the two Lower Courts except in special circumstances such as the commission of error in substantive or procedural law”. PER PETER-ODILI, JSC

UNDEFENDED LIST PROCEDURE-WHERE A DEFENDANT HAS NO DEFENCE TO THE ACTION-DUTY OF THE COURT

“Where a trial Court finds as in this case that defendant has no defence to a plaintiffs suit placed under the undefended list, the court has no option other than to enter judgment for the plaintiff for the sum of money claimed”. PER PETER-ODILI, JSC

UNDEFENDED LIST PROCEDURE-INTENTION TO DEFEND –WHEN CAN BE REGARDED AS MERITORIOUS

“For an Intention to Defend to be regarded as meritorious warranting the matter being transferred from the Undefended List to the General Cause List for a full hearing with the taking of evidence, oral and documentary, a certain standard is required of such a- defendant and the supporting affidavit of that Intention to defend must contain a defence on the merit”. PER PETER-ODILI, JSC

UNDEFENDED LIST PROCEDURE-DUTY OF A DEFENDANT THERETO

“It is not enough for the defendant merely to deny the claim or aver that some payments he made were not taken into account. He must set out the details and particulars of the defence”. PER PETER-ODILI, JSC

FRAUD-DUTY OF PARTY RELYING THEREON

“It cannot be left unsaid that fraud being of its gravity, the law insists that concrete materials must back up such an allegation in proof before fraud can change the colour of the case of the party alluding thereto”. PER PETER-ODILI, JSC

UNDEFENDED LIST ACTION-WHEN AN UNDEFENDED LIST ACTION CAN BE TRANSFERRED TO THE GENERAL CAUSE LIST

‘However, for an action to be transferred to the general cause list from the undefended list there must be a defence on the merit. It must not be a half – hearted defence”. PER PETER-ODILI, JSC

CASES CITED

Adebavo v Ighodalo (1996) 5 NWLR (Pt. 450) 507 at 516, 527 – 530 (SC),Adegoke Motors Ltd v Adesanya (1989) 3 NWLR (Pt. 109) 250Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248Balogun v Amubikanhun (1989) 3 NWLR (Pt. 107) 18,Chinwendu v Mbamadli (1980) 3 – 4 SC 31 at 53;Egonu v Egonu (1978) 11 – 12 SC 111 at 129;Ehidimhen vMusa (2000) 8 NWLR (Pt. 669) 540 at 556 – 557Enang v Adu (1981) 11-12 SC 25Franchal (Nig.) Ltd v N. A. B. Ltd (1995) 8 NWLR (Pt. 412) 172.John Holt & Co. (Liverpool) Ltd v Faiemirokun (1961) 1 All NLR 492NICON v P. I. E. Co. Ltd (1986) 1 NWLR (Pt. 14) 1Nishizawa Ltd v Jethwani (1984) 12 SC 234;Obibu v Guobadia (1984) 10 SC 130;Tahir v J. Udeagbala Holdings Ltd (2004) 2 NWLR (Pt. 854) 438UTC v Pamotei (1989) 1 NWLR (Pt. 103) 244

STATUTES REFERRED TO

High Court Rules, 1988, Anambra StateEvidence Act, 2011

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