CORAM
Uwani Musa Abba Aji Justice of the Supreme Court of Nigeria
Adamu Jauro Justice of the Supreme Court of Nigeria
Chioma Egondu Nwosu-Iheme Justice of the Supreme Court of Nigeria
Obande Festus Ogbuinya Justice of the Supreme Court of Nigeria
Habeeb Adewale Olumuyiwa Abiru Justice of the Supreme Court of Nigeria
PARTIES
UNITY BANK PLC
APPELLANTS
1. RHOUR AND LUE NIG.LTD
2. ALHAJI HAMZA ISA
RESPONDENTS
AREA(S) OF LAW
BANKING LAW, CONTRACT LAW, CIVIL PROCEDURE, LIQUIDATED MONEY DEMAND, UNDEFENDED LIST PROCEDURE, EVIDENCE, INTEREST RATE, LOAN AGREEMENT, JUDICIAL DISCRETION, PRACTICE AND PROCEDURE
SUMMARY OF FACTS
This case revolves around a loan facility granted by the appellant (Unity Bank PLC) to the respondents (Rhour and Lue Nigeria Ltd and Alhaji Hamza Isa) to enable them to purchase two Mercedes Benz 1418 Tippers for a supply contract with the Abuja Environmental Protection Board. On July 4, 2001, the respondents applied for a loan facility of N19 million from the appellant. The appellant approved the application on July 19, 2001, and the respondents accepted the grant with all conditions attached on July 20, 2001. The loan was for a period of 30 days. The Board opened a domiciliary account with the appellant for the payment of the loan when the supply contract was executed. The respondents defaulted in repaying the loan after the expiration of its 30-day tenure.
Consequently, on September 24, 2002, the appellant approached the High Court of the Federal Capital Territory under the undefended list procedure, claiming the sum of N27,971,473.58 (representing the principal sum of N19 million plus accrued interest), compound interest at 32% per annum from August 30, 2002, until judgment, and 10% court interest from the date of judgment to full settlement.
The respondents filed a notice of intention to defend with a supporting affidavit. The appellant filed a counter-affidavit. The trial Court, in its ruling delivered on June 16, 2005, granted the appellant’s claims and struck out the second respondent’s name from the suit. Dissatisfied, the respondents appealed to the Court of Appeal. The appellant cross-appealed against the striking out of the second respondent. The Court of Appeal allowed both the main appeal and the cross-appeal and remitted the case to the trial Court for a trial under the general cause list procedure.
The appellant, aggrieved by this decision, appealed to the Supreme Court.
HELD
1. The appeal was allowed in part.
2. The Supreme Court set aside the part of the Court of Appeal’s decision which remitted the loan sum of N19 million to the trial Court for a new trial under the general cause list.
3. The Supreme Court restored the part of the judgment of the trial Court which awarded N19 million and 10% post-judgment interest to the appellant.
4. The Supreme Court affirmed the part of the Court of Appeal’s decision which ordered the trial of the balance of N8.9 million (arising from interest) and other interests on the principal sum of N19 million before the trial Court under the general cause list.
5. The case was remitted to the Chief Judge of the High Court of the Federal Capital Territory, Abuja, for reassignment to another judge for an expeditious fresh hearing of the balance of N8.9 million under the general cause list procedure.
6. The parties were ordered to bear their respective costs.
ISSUES
1. Whether the Court of Appeal was bound to consider all the issues raised by the appeal and whether the non-consideration of all the issues amounts to a denial of fair hearing or miscarriage of justice?
2. Whether the mere filing of a counter-affidavit in an undefended list proceeding should automatically lead to a transfer of the matter to the general cause list?
3. Whether the Court can bring into its judgment issues not canvassed by the parties?
RATIONES DECIDENDI
DUTY OF APPELLATE COURT – WHETHER AN APPELLATE COURT MUST CONSIDER ALL ISSUES PRESENTED BEFORE IT
Generally, a Court of law, trial or appellate, has the bounden duty to consider and pronounce on all issues validly submitted and joined by the parties before it… this hallowed principle of law, which compels Courts, especially those beneath the apex Court, to consider all issues, is a flexible one. In point of fact, it is better appreciated in its deluge of exceptions than the rule itself. Its elasticity is located in the variegated areas within the expansive landscape of adjectival law.- Per OBANDE FESTUS OGBUINYA, J.S.C
CONSIDERATION OF SUBSUMED ISSUES – WHERE AN ISSUE IS ENCOMPASSED BY ANOTHER ISSUE
A Court is not mandated to pronounce on an issue which is subsumed or encompassed by another issue that is already considered… the intertwined judicial relationship between the two sets of issues, which takes a comfortable shelter under the umbrella of the doctrine of subsumed issue, has discharged and acquitted the lower Court of the allegation of failure to pronounce on the issues two and three presented before it.- Per OBANDE FESTUS OGBUINYA, J.S.C
REHEARING ORDERS – TREATMENT OF ISSUES IN APPELLATE COURT WHEN ORDERING REHEARING
Where an appellate Court intends to order, or orders, for a fresh hearing, the law forbids it from treating any other issues/points in the appeal that may arise at the rehearing proceedings… the philosophical basis for this hallowed principle of law is not conjectural. It is to restrain an appellate Court from delving into issues that will prejudge the decision of the lower Court during the rehearing sessions. – Per OBANDE FESTUS OGBUINYA, J.S.C
NATURE OF UNDEFENDED LIST PROCEDURE – PURPOSE AND CHARACTERISTICS
By the very liberal nature of an undefended list procedure, judgments are awarded to plaintiffs without taking the defence of defendants… The purpose of such a procedure is to enable a plaintiff to obtain summary judgment without trial where he has a patently clear and reasonable case. It is, however, not designed to shut out a defendant who can show a defence.- Per OBANDE FESTUS OGBUINYA, J.S.C
TRIABLE ISSUE – WHAT CONSTITUTES A TRIABLE ISSUE IN UNDEFENDED LIST PROCEDURE
It is sufficient if the affidavit discloses a triable issue or that a difficult point of law is involved; or that there is a dispute as to the facts which ought to be tried, that there is a real dispute as to the amount due which requires the taking of an account to determine or any other circumstances showing reasonable grounds of bone fide defence. – Per OBANDE FESTUS OGBUINYA, J.S.C
ADMISSIONS – EFFECT OF ADMISSION IN AFFIDAVIT IN UNDEFENDED LIST PROCEDURE
In the evidential pyramid, admission has been crowned with the deserved toga of the best evidence against the party making it… An admitted fact does not need any proof… In the presence of the respondents’ wholesale admission of the loan facility of N19M, a liquidated sum par excellence, the issue of difficult point of law vanishes, factual disputation takes to flight and the necessity for further account/investigation becomes a pipe dream.” – Per OBANDE FESTUS OGBUINYA, J.S.C
LOAN AGREEMENTS – DEFENCES AVAILABLE IN LOAN RECOVERY ACTIONS
In an action placed in the undefended list where the plaintiff claims repayment of loan, the defences open to the defendant are only two – (i) that the defendant had refunded the entire loan by the production of receipts, bank tellers or any other document showing that the debt was totally repaid or (ii) that he never borrowed the money in the first place, he never applied for the loan or debt, he never obtained any money and that any purported application of the loan or receipt for the loan issued by him is a forgery. – Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C
INTEREST CLAIMS – SUITABILITY OF UNDEFENDED LIST PROCEDURE FOR INTEREST CLAIMS
In the N.M.C.B (Nig.) Ltd. v. Obi (2010) 14 NWLR (Pt. 1213) 169, at 188- 189, Mohammed, JSC, declared: ‘While the claim of the plaintiff/appellant for the actual amounts or sums constituting the principal loan granted could be termed as liquidated claim within the requirement of the undefended list procedure, the claim for interest accruing on the loan granted which must be arrived at upon calculation on the agreed rates of interest having regard to the period covered, can hardly qualify as liquidated claim under the rules…– Per OBANDE FESTUS OGBUINYA, J.S.C
PROOF OF INTEREST CLAIMS – REQUIREMENTS FOR PROVING INTEREST CLAIMS
Generally, a claim for interest under the undefended list bears the same principles as in a claim under the general cause list. Any plaintiff claiming interest under the undefended list must disclose in his affidavit how his right to interest accrues and how the rate thereof was arrived at. – Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C
STATEMENT OF ACCOUNT – INSUFFICIENCY OF STATEMENT OF ACCOUNT AS PROOF OF LIABILITY
It is settled law that a statement of account cannot, on its own, amount to sufficient proof to fix liability on the customer for the overall debit balance shown on the account. Any person who is claiming a sum of money on the basis of the overall debit balance in a statement of account is under an obligation to adduce both documentary and oral evidence explaining clearly the entries therein to show how the overall debit balance was arrived at. – Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C
LIQUIDATED MONEY DEMAND – MEANING AND SCOPE
A liquidated demand is a debt or other specific sum of money usually due and payable and its amount must be already ascertained or capable of being ascertain as a mere matter of arithmetic without any other or further investigation. Whenever, therefore, the amount to which a plaintiff is entitled can be ascertained by calculation or fixed by any scale of charges or other positive data, it is said to be ‘liquidated’ or made clear.- Per OBANDE FESTUS OGBUINYA, J.S.C
POST-JUDGMENT INTEREST – COURTS’ DISCRETION TO AWARD POST-JUDGMENT INTEREST
Post-judgment interest compensates the successful party for the loss of use of money from the period of the Court’s judgment until the time the judgment is actually paid-including the period during which appeals are pending. Post-judgment interest compensates the successful party for the delay in receiving the judgment owed. This is clearly in exercise of its discretionary powers to order interest in respect of a judgment in favour of a party. The law is that post judgment interest needs not be specifically claimed. The award is at the discretion of the Court and it is regulated by the rules and operating statute. – Per HABEEB ADEWALE OLUMUYIWA ABIRU, J.S.C
ACADEMIC ISSUES – COURTS’ JURISDICTION OVER ACADEMIC ISSUES
The settled position of the law is that a Court is drained of the necessary jurisdiction to adjudicate over an academic dispute which resides in the domain of the exclusive reserve of those in the ivory towers. The reason is this. An academic question is divorced from a live issue which engage the adjudicative attention of the Courts. This is so even if its determination will enrich the legal jurisprudence. – Per OBANDE FESTUS OGBUINYA, J.S.C
CASES CITED
STATUTES REFERRED TO
1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
3. High Court of the Federal Capital Territory, Abuja Civil Procedure Rules