PARETO FUNDS & SECURITIES LTD. V. INTERNATIONAL TRUST BANK PLC. (2011)

PARETO FUNDS & SECURITIES LTD. V. INTERNATIONAL TRUST BANK PLC.

(2011)LCN/4613(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of June, 2011

CA/PH/2/2008

RATIO

PRELIMINARY OBJECTION: WHETHER ONCE A NOTICE OF PRELIMINARY OBJECTION IS RAISED, FILED AND SERVED ON THE OTHER PARTY, THE COURT MUST CONSIDER IT BEFORE DELVING INTO THE MAIN ISSUES

It is a settled principle of law that once a notice of preliminary objection is raised, filed and served on the other party, it is the duty of the trial or appellate court to consider the same before delving into the main issues. But where the preliminary objection is sustained’ then it will amount to academic exercise which can only waste the time of the court and the parties, see All States Trust Bank Vs. King Davidson Enterprises Ltd (2000) 12 NWLR (Pt 681) 298; BEGHA vs. TIZA (2000) 4 NWLR (Pt 652) 193; UBA vs. AWE (2000) 5 NWLR (Pt 670) 739 and N Vschcep Vs. M.V “S” ARAZ (2000) 15 NLR (Pt 691) 622 S.C. PER ISTIFANUS THOMAS, J.C.A.

NOTICE OF INTENTION TO DEFEND: WHETHER WHEN THE NOTICE OF INTENTION TO DEFEND RAISES A TRIABLE ISSUE, THE DEFENDANT WILL STILL BE REQUIRED TO PROVE THE DEFENCE ON THE MERIT FOR THE MATTER TO BE TRANSFERRED TO THE GENERAL CAUSE LIST

The appellant’s argument on its first issue is that at the lower court, he had submitted that it was not required in law to prove its defence, but only to disclose its defence on the merit for the matter to be transferred to the general cause list, and that the trial court appeared to have accepted this submission when it held at page 119 of the record as follows: “When the notice of intention to defend raises a triable issue which can be resolved by the court after hearing evidence the defendant is not required to prove the defence but to disclose same albeit on the merits.” There is no doubt in my mind that the above principle of law stated by the learned trial Federal High court judge quoted above by the appellant, is correct, see EURO-BATI Concepts S.A. Vs. Tic Ltd (2001) 18 NWLR (Pt 744) 165; Agro Miters Ltd Vs. C.M.B (1997) 10 NWLR (Pt. 525) 467, where this court had stated that all the trial judge was required to do, was to look at the affidavit evidences of the defendant and decide whether or not a defence on the merit had been disclosed therein before deciding and grant the appellant’s leave to defend as in the instant intention to defend. The rules do not empower the lower court to decide whether or not the defences set up in the affidavit of the defendant/appellant had been established or proved In Agro Millers Ltd Vs. CMB (supra) this court held that it is settled law that in determining whether a defendant has a good defence to the action on the merit, it is necessary for the trial court to decide at the stage whether the defence has been established. What is simply required is to look at the facts averred in the affidavit of the defendant in support of the notice of intention to defend and see if those facts can prima facie support a defence to the action on the merit’ whether that defence will ultimately succeed is competent is irrelevant at that stage. Now having stated the principle of law relating to affidavit evidence in support of the notice of intention to defend, the appellant has submitted that the trial court promptly, proceeded to apply the wrong criteria to enter judgment against the appellant’ That the court made an error, when it held that: – “It is also instructive that no evidence of the ultra vires rapture of the contract was put forward by any of a Banking Licence and the defendant’s Memorandum and Articles of Association to enable the court to see t the contract was ultra vires.” The appellant went further and submitted that, a defendant under the undefended list is not required by law to present evidence of his defence on the merit before he would be granted leave to defend the suit, and that by imposing this additional burden on the now appellant, the trial court wrongly refused, to transfer the suit to the general cause list. The appellant further submitted that the failure of the trial court to apply the above stated principle of law he argued and referred to the cases of EURO-BATIS CONCEPTS S.A. VS. TIC LTD (supra) and AGRO-MILLER LTD. V. CMB (supra) and NISHAZAWA LTD. VS. JETHWANI (1984) 1 SC 234; OBI VS. NKWO MARKET COMMUNITY BANK LTD (2001) 2 NWLR (Pt.696) 113, resulted in the lower court not properly evaluating the affidavit evidence of the appellant. The appellant further submitted in its paragraph 4.6 of the brief that in its notice of intention to defend, it alleged that EXHIBIT ‘A’ on which the claim was grounded was ultra vires its memorandum and articles of association, and banking licence and had been made by a rogue branch manager without authority. (underline is mine). The appellant also alleged that there was a large discrepancy between the claim in the suit and the principal sum covered by EXHIBIT A, which had not been fulfilled. The appellant then contended that the trial court should have found that the notice of intention to defend raised triable issues which could not be resolved by the undefended list procedure and therefore, the suit should have been transferred to the general cause list to enable the parties to adduce evidence which was not allowed and that the act occasioned a miscarriage of justice to the appellant. The appellant urged this court to allow the appeal. On the part of the respondent on issue 1, it was submitted that the contention of the appellant is misconceived for the following reasons, namely, that the appellant at its paragraphs 5(i)(ii)(iii) and (iv) of its affidavit to defend, alleged in relation to the transaction in EXHIBIT A that it was ultra vires the appellant based on its banking licence and its business object, that but the appellant did not furnish or exhibit the said banking license and its memorandum and articles of Association to see its business object. The respondent further contended that, the phrase “no evidence” used by the passage he stated in his judgment, is no more than a reference to appellant’s failure to furnish the trial court with the said banking license and its Memorandum and Articles of Association so as to enable the court to see whether the appellant’s fetter in EXHIBIT A was ultra vires as alleged by the appellant in its affidavit in support of the notice to defend learned counsel for the respondent has further submitted that an affidavit to defend a suit on the undefended list ought to clearly state what the defence is and what facts are relied to support same’ and referred to and relied on the cases of Imo Concorde Hotel Ltd vs. Choice Supermarket & Restaurants Ltd (2008) All FWLR (Pt 400) 680. Counsel further submitted that the basic principle of law is that a trial court must not rely on a document not tendered as an exhibit before it and referred to the case of OPARAJI V. OHAMU (2001) All FWLR (Pt 43) 385, and then submitted that the instant appellant in this matter, having benefited from the loan it obtained from the respondent through exhibits A, B, C and D can not turn round to impugn the transaction when it is its turn to fulfill its obligation, the respondent having fulfilled its own side, and referred to the case of savanna vs. African International Bank ORS (2001) 4 NWLR (Pt. 703) 353. The respondent has further contended that, the appellant’s defences raised in the notice of intention to defend is similar to the case of OWNERS HOME SAVING & LOAN V. TOJUOMO LTD. is very misconceived and therefore not reliable because, the defences made by the appellant were quite different from the defences raised in owners Home Vs. Tojuomo Ltd (supra) and then submitted that the defences made in the case of Imo Concorde Hotels Ltd Vs. Choice Supermarket Ltd (supra) were similar to the defences in the instant appeal, and that the defences in both cases are:- i. Both defendants wanted to avoid paying their debts by hiding under their corporate entity. ii. Both defendant acted through their managers who they want to impugn their capacity to so act as managers. iii. Both defendants, had made part payment of their debts through their respective managers before they were sued for the balance. iv. In both cases the plaintiffs showed documentary evidence of the undoubted indebtedness of the defendants. The respondent has shown how the sum of N3,000,000 was paid to the appellant as shown in EXHIBIT A, and by EXHIBITS E and E1, at pages 66 and 68 of the record, the appellant had confirmed the repayment of the sum of N310,000, as their installment repayment of the debt, and that in the face of all these, it is very pretentious for the appellant to contend wrongly, that it has the defence on the merit as this court made similar in the case of Imo Concorde Hotel Vs. Choice Supermarket (supra) at page 707 paragraph B – G and Haido Vs. Usman (2004) 3 NWLR (Pt. 859) 65. The respondent then concluded its argument on both parties issues 1, and urged their court to hold that the learned trial judge did not adopt a wrong criteria in entering judgment against the appellant. That the trial judge arrived at its judgment based on the fact that the appellant’s affidavit to defend did not disclose any defence on the merit. I have carefully considered the parties arguments, and I am of the considered view that, the crux of the matter is, whether the appellant had infact made an affidavit evidence to prove his defence against the undefended list. I am satisfied that, the learned trial judge, did infact consider the defendant/appellant’s affidavit in support of the intention to defend which was filed on 23-11-04. The affidavit was intended to disclose a simpte defence on the merit as required by the provisions of Order 24 rule 3(i) of the Federal High Court rules 2000. The learned trial judge had clearly stated in his judgment at page 199 of the record as follows, and I fully agree with the principle; “In deed in determining this issue, the court must exercise a measure of liberality in viewing the defendant’s affidavit where the notice of intention to defend raises a triable issue which can only be resolved by the court after hearing evidence, the defendant is not required to prove his defence but to disclose same, albeit on the merits.” The above quoted principle can not be altered or denied. The trial judge was on strong ground of the principle of law in considering leave of court to defend the undefended list. PER ISTIFANUS THOMAS, J.C.A.

AFFIDAVIT TO DEFEND ON THE UNDEFENDED LIST: WHAT AN AFFIDAVIT TO DEFEND ANY SUIT ON THE UNDEFENDED LIST MUST CONTAIN

It is no more in doubt that, an affidavit to defend any suit on the undefended list, must clearly state what the defence is at about and facts are relied upon, see Imo Concord Hotels Ltd v. Choice Supermarket (supra), where our learned brother Garba, JCA, stated effectively that:- “The affidavit must condescend upon the particulars and as far as possible, deal specifically with the plaintiffs claim and affidavit and state clearly what the defence is and what facts are relied upon to support it. A mere general denial that the defendant is not indebted to the plaintiff is not sufficient,” PER ISTIFANUS THOMAS, J.C.A.

ILLEGAL CONTRACT: WHETHER A PARTY, WHO HAS KNOWLEDGE OR IS PRESUMED TO HAVE KNOWLEDGE OF THE EXISTENCES OF AN ILLEGALITY IN A TRANSACTION AND, ENTERED INTO THE TRANSACTION, CAN NOT LATTER LABEL IT AS ILLEGAL AND RAISE ILLEGALITY AS A DEFENCE

A party, who has knowledge or is presumed to have knowledge of the existences of an illegality in a transaction and, entered into the transaction, can not latter label it as illegal and raise illegality as a defence. Equity shall not condone it, as one can not approbate and reprobate. In the instant case, as the appellant itself, through its Branch Manager at Port Harcourt, originated or perpetuated illegality and ultra vires acts, that appellant can not rely on it as defence, See Oyegoke v. Irigunh (2002) 5 NWLR (Pt. 760) 417 and Achu Vs. CSC, Cross Rivers State (2009) 3 NWLR (Pt. 1129) 475, 500 – 501. PER ISTIFANUS THOMAS, J.C.A.

APPEAL AGAINST DECISION OF COURT: WHETHER A PARTY WHO FAILS TO APPEAL AGAINST A FINDING OF THE TRIAL COURT OR THE COURT OF APPEAL, CAN BE HEARD TO QUESTION THAT FINDING ON APPEAL.

It is settled law that an appellant challenging a specific finding of court as the appellant has done in his issue 2 in the instant matter must raise a specific ground of appeal there on, See OTUEDON V. OLUGHOR (1997) 9 NWLR (Pt. 521 – 355; OPARA V. DOWELL SCHLUMBERGER (Nig) Ltd (supra). MOREOVER, AS STATED BY THE SUPREME Court in the same cased Opara v. Dowell (supra), it is settled law that where a party fails to appeal against a finding of the trial court or the Court of Appeal, he cannot be heard to question that finding on appeal. PER ISTIFANUS THOMAS, J.C.A.

Justice

M. DATTIJO MUHAMMAD (OFR) Justice of The Court of Appeal of Nigeria

ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria

TUNDE O. AWOTOYE Justice of The Court of Appeal of Nigeria

Between

Justice

PARETO FUNDS & SECURITIES LTD.Appellant(s)

AND

INTERNATIONAL TRUST BANK PLC.Respondent(s)

ISTIFANUS THOMAS, J.C.A. (Delivering the Leading Judgment): By writ of summons, the plaintiff but now simply the respondent, filed on the 03-08-2004 against the defendant, but to be referred to as the appellant. The suit was commenced at the Federal High Court Port Harcourt presided by A.O. Faji, Judge, who delivered his judgment on 16-12-2005 against the appellant and it was on the undefended list.
The respondent’s claim on the writ was for the sum of N17,726,833.73 being the principal and “accrued profit sharing investment yield charge” as at 31-07-2007 arising from debt and thereafter profit sharing investment yield charge at the rate of 5.5% and then 10% post judgment interest.
The respondent’s writ on the undefended cause list was, supported by affidavits evidence wherein, it set out the claim against the appellant as follows:
“i. sometimes on 21-08-01 the appellant by Exhibit A, requested the respondent to invest N3,000.000 by disbursing same to the appellant’s customers, DNA PLUS Resources and McDaniel’s & Anad Associations. The appellant undertook to repay the principal sum plus profit sharing investment yield charge in 120 days.
ii. The respondent accepted the appellant’s offer by two letters written on 27-8-01 and 27-11-01 and marked Exhibits B and C respectively.
iii. The respondent advanced the sum of N3,000,000 on 28-8-01 to DNA PLUS.
iv. Contrary to their terms of agreement, the appellant failed to repay the principal sum and the accrued profit sharing investment yield charges.
After serving the appellant with the writ the appellant filed on 23-11-04, two motions on notice, namely for an order of the trial court to strike out the suit on the ground that the court had no jurisdiction to hear and determine the suit; and the other motion was for extension of time to file a Noticed of intention to Defend the suit. The trial court first considered the issue of jurisdiction and dismissed same on the finding that the Federal High court had the jurisdiction. The trial court also, granted the appellant extension of time to file its notice of intention to defend, and it was deemed property filed and served.
In the appellant’s notice of intention to defend, it raised the following relevant assertions as follows:
i. That it is a commercial banker under a license from central Bank of Nigeria and engaged in accounts keeping and giving credit facilities of its customer. That it does not engage in investment or merchant banking.
ii. That the appellant could not by its operating license, enter into profit sharing investment venture with the respondent.
iii. The DNAA PLUS Resources and McDaniel’s with the Port Harcourt branch and then applied for a credit facility of N8.500.000 and matter was referred to the head office of the appellant. That it is true that the respondent granted N3,000,000 facility to DNA Plus Resources and McDaniel’s & Anad Associates subject to a guaranteed from a reputable bank.
iv. That the appellant did not guaranteed the credit facility as this would require Board Approval.
v. That Exhibit A filed by the respondent, was fraudulently prepared by the appellant’s Port Harcourt branch manager without the knowledge and consent of the appellant. That based on the acts of its branch manager he was sacked from appellant’s office.
vi. That the cheque for N3,000,000 on which the claim of the respondent was predicated was not issued to DNA PLUS Resources and McDaniel’s & Anad Associates Ltd but to one Mohammed McDaniel Nat who was unknown to the appellant, and is not a director, Manager or agent of the appellant.
vii. That the respondent did not explain how it came to its claim of N17,726,833.73 from a facility of N3,000,000.
After the appellant notice of intention to defend was served on the respondent, it opposed the notice of defence by counter. The trial court made an order for written addresses which were dully filed and adopted same. Both parties raised a sole issue for determination at the trial court, and it reads thus:
“Whether the defendant’s affidavit in support of the notice of intention to defend filed in this suit on 23-11-2004 has disclosed a defence on the merit as required by the provisions of order 24 rule 3(1) of the Federal High court (civil procedure) Rules 2000.”
The trial court considered the written addresses of parties along with the sole issue for determination and ruled that the defendant now appellant did not disclose a defence to warrant a transfer of the suit to the general cause list. The ruling was delivered on 16-12-05. Dissatisfied with ruling, the appellant filed on 22-12-05 its Notice of appeal containing six grounds of appeal as contained on pages 122 – 126 of the record.
As usual, parties exchanged their briefs and their respective issues for determination. Appellant’s issues are as follows:
“(i) whether the trial court was right when it placed on the defendant/appellant a burden to prove by evidence its defence of the merit before the matter could be transferred to the general cause list.
(ii) Whether the grant of unliquidated claim for interest under the undefended list procedure is Permissible in law.
(iii) Whether the trial court was right to infer from the conduct of the appellant an admission of the respondent’s claim so as to entitle the respondent to judgment under the undefended list”‘
On the part of the respondent, its brief was filed on 25-3-2008, and he had before hearing, resided a notice of preliminary objection on the appellant’s appeal which he alleges is incompetent as grounds of appeal claiming that grounds 1, 2, 3, 4 and 5 and the issues raised are not related to the decisions of the trial judge. But incase the preliminary objection could not scale, the respondent has raised similar three issues for determination and they read thus:
“1. Whether the learned trial judge adopted wrong criteria in entering judgment against the appellant on the undefended list (grounds 1, 2, and 3).
2. Whether the learned trial judge inferred that the appellant by Exhibit G, admitted the clam of the respondent (grounds 4).
3. Whether the learned trial judge entered judgment under the undefended list for a claim for interest on unspecified rate. (ground 5).
With regards to the respondent’s notice of preliminary objection, I have looked at the appellant’s reply brief which was filed on 14-04-2000.
It is a settled principle of law that once a notice of preliminary objection is raised, filed and served on the other party, it is the duty of the trial or appellate court to consider the same before delving into the main issues.
But where the preliminary objection is sustained’ then it will amount to academic exercise which can only waste the time of the court and the parties, see All States Trust Bank Vs. King Davidson Enterprises Ltd (2000) 12 NWLR (Pt 681) 298; BEGHA vs. TIZA (2000) 4 NWLR (Pt 652) 193; UBA vs. AWE (2000) 5 NWLR (Pt 670) 739 and N Vschcep Vs. M.V “S” ARAZ (2000) 15 NLR (Pt 691) 622 S.C.  I am therefore going to consider the preliminary objection of the respondent. In the first place, the appellant’s grounds of appeal without reproducing the particulars are hereby reproduced as follows:
“Ground i The learned trial judge erred in law by applying the wrong criteria to enter judgment against the defendant/appellant on the undefended list.
Ground ii – The judge misdirected himself on the standard of proof required of the defendant/appellant under the undefended list procedure and thereby occasioned a miscarriage of Justice against the defendant/appellant.
Ground iii. The learned trial court erred in law by failing to properly evaluate the affidavit evidence before the court.
Ground iv – The learned judge erred in law by inferring that defendant/appellant by Exhibit G admitted the claim of the plaintiff respondent.
Ground v. The learned trial judge erred in law in entering judgment under the undefended list for a claim for interest on unspecified rate”.
In my considered opinion, the appellant’s three issues are interrelated to its five grounds of appeal quoted above. Moreover, the appellant gave concise particulars to each ground of appeal. It is therefore patently wrong for the respondent to raise a preliminary objection that the three issues are not related to the grounds of appeal. The minor mistake made by the appellant is that, it did not specifically, state the grounds(s) on which a particular issue is raised, but its beginning of appellant’s argument has clearly stated the ground(s) see page 5, 8, 10 of appellants brief. It is based on these that, the respondent raised his own issues quoted above. In other words both parties’ issues are related to the grounds of appeal filed by the appellant. Based on my above finding, the preliminary objection is over ruled.
The appellant’s argument on its first issue is that at the lower court, he had submitted that it was not required in law to prove its defence, but only to disclose its defence on the merit for the matter to be transferred to the general cause list, and that the trial court appeared to have accepted this submission when it held at page 119 of the record as follows:
“When the notice of intention to defend raises a triable issue which can be resolved by the court after hearing evidence the defendant is not required to prove the defence but to disclose same albeit on the merits.”
There is no doubt in my mind that the above principle of law stated by the learned trial Federal High court judge quoted above by the appellant, is correct, see EURO-BATI Concepts S.A. Vs. Tic Ltd (2001) 18 NWLR (Pt 744) 165; Agro Miters Ltd Vs. C.M.B (1997) 10 NWLR (Pt. 525) 467, where this court had stated that all the trial judge was required to do, was to look at the affidavit evidences of the defendant and decide whether or not a defence on the merit had been disclosed therein before deciding and grant the appellant’s leave to defend as in the instant intention to defend. The rules do not empower the lower court to decide whether or not the defences set up in the affidavit of the defendant/appellant had been established or proved
In Agro Millers Ltd Vs. CMB (supra) this court held that it is settled law that in determining whether a defendant has a good defence to the action on the merit, it is necessary for the trial court to decide at the stage whether the defence has been established. What is simply required is to look at the facts averred in the affidavit of the defendant in support of the notice of intention to defend and see if those facts can prima facie support a defence to the action on the merit’ whether that defence will ultimately succeed is competent is irrelevant at that stage. Now having stated the principle of law relating to affidavit evidence in support of the notice of intention to defend, the appellant has submitted that the trial court promptly, proceeded to apply the wrong criteria to enter judgment against the appellant’ That the court made an error, when it held that: –
“It is also instructive that no evidence of the ultra vires rapture of the contract was put forward by any of a Banking Licence and the defendant’s Memorandum and Articles of Association to enable the court to see t the contract was ultra vires.”
The appellant went further and submitted that, a defendant under the undefended list is not required by law to present evidence of his defence on the merit before he would be granted leave to defend the suit, and that by imposing this additional burden on the now appellant, the trial court wrongly refused, to transfer the suit to the general cause list.
The appellant further submitted that the failure of the trial court to apply the above stated principle of law he argued and referred to the cases of EURO-BATIS CONCEPTS S.A. VS. TIC LTD (supra) and AGRO-MILLER LTD. V. CMB (supra) and NISHAZAWA LTD. VS. JETHWANI (1984) 1 SC 234; OBI VS. NKWO MARKET COMMUNITY BANK LTD (2001) 2 NWLR (Pt.696) 113, resulted in the lower court not properly evaluating the affidavit evidence of the appellant.
The appellant further submitted in its paragraph 4.6 of the brief that in its notice of intention to defend, it alleged that EXHIBIT ‘A’ on which the claim was grounded was ultra vires its memorandum and articles of association, and banking licence and had been made by a rogue branch manager without authority. (underline is mine).
The appellant also alleged that there was a large discrepancy between the claim in the suit and the principal sum covered by EXHIBIT A, which had not been fulfilled. The appellant then contended that the trial court should have found that the notice of intention to defend raised triable issues which could not be resolved by the undefended list procedure and therefore, the suit should have been transferred to the general cause list to enable the parties to adduce evidence which was not allowed and that the act occasioned a miscarriage of Justice to the appellant. The appellant urged this court to allow the appeal.
On the part of the respondent on issue 1, it was submitted that the contention of the appellant is misconceived for the following reasons, namely, that the appellant at its paragraphs 5(i)(ii)(iii) and (iv) of its affidavit to defend, alleged in relation to the transaction in EXHIBIT A that it was ultra vires the appellant based on its banking licence and its business object, that but the appellant did not furnish or exhibit the said banking license and its memorandum and articles of Association to see its business object. The respondent further contended that, the phrase “no evidence” used by the passage he stated in his judgment, is no more than a reference to appellant’s failure to furnish the trial court with the said banking license and its Memorandum and Articles of Association so as to enable the court to see whether the appellant’s fetter in EXHIBIT A was ultra vires as alleged by the appellant in its affidavit in support of the notice to defend learned counsel for the respondent has further submitted that an affidavit to defend a suit on the undefended list ought to clearly state what the defence is and what facts are relied to support same’ and referred to and relied on the cases of Imo Concorde Hotel Ltd vs. Choice Supermarket & Restaurants Ltd (2008) All FWLR (Pt 400) 680. Counsel further submitted that the basic principle of law is that a trial court must not rely on a document not tendered as an exhibit before it and referred to the case of OPARAJI V. OHAMU (2001) All FWLR (Pt 43) 385, and then submitted that the instant appellant in this matter, having benefited from the loan it obtained from the respondent through exhibits A, B, C and D can not turn round to impugn the transaction when it is its turn to fulfill its obligation, the respondent having fulfilled its own side, and referred to the case of savanna vs. African International Bank ORS (2001) 4 NWLR (Pt. 703) 353.
The respondent has further contended that, the appellant’s defences raised in the notice of intention to defend is similar to the case of OWNERS HOME SAVING & LOAN V. TOJUOMO LTD. is very misconceived and therefore not reliable because, the defences made by the appellant were quite different from the defences raised in owners Home Vs. Tojuomo Ltd (supra) and then submitted that the defences made in the case of Imo Concorde Hotels Ltd Vs. Choice Supermarket Ltd (supra) were similar to the defences in the instant appeal, and that the defences in both cases are:-
i. Both defendants wanted to avoid paying their debts by hiding under their corporate entity.
ii. Both defendant acted through their managers who they want to impugn their capacity to so act as managers.
iii. Both defendants, had made part payment of their debts through their respective managers before they were sued for the balance.
iv. In both cases the plaintiffs showed documentary evidence of the undoubted indebtedness of the defendants.
The respondent has shown how the sum of N3,000,000 was paid to the appellant as shown in EXHIBIT A, and by EXHIBITS E and E1, at pages 66 and 68 of the record, the appellant had confirmed the repayment of the sum of N310,000, as their installment repayment of the debt, and that in the face of all these, it is very pretentious for the appellant to contend wrongly, that it has the defence on the merit as this court made similar in the case of Imo Concorde Hotel  Vs. Choice Supermarket (supra) at page 707 paragraph B – G and Haido Vs. Usman (2004) 3 NWLR (Pt. 859) 65. The respondent then concluded its argument on both parties issues 1, and urged their court to hold that the learned trial judge did not adopt a wrong criteria in entering judgment against the appellant. That the trial judge arrived at its judgment based on the fact that the appellant’s affidavit to defend did not disclose any defence on the merit.
I have carefully considered the parties arguments, and I am of the considered view that, the crux of the matter is, whether the appellant had infact made an affidavit evidence to prove his defence against the undefended list. I am satisfied that, the learned trial judge, did infact consider the defendant/appellant’s affidavit in support of the intention to defend which was filed on 23-11-04. The affidavit was intended to disclose a simpte defence on the merit as required by the provisions of Order 24 rule 3(i) of the Federal High Court rules 2000. The learned trial judge had clearly stated in his judgment at page 199 of the record as follows, and I fully agree with the principle;
“In deed in determining this issue, the court must exercise a measure of liberality in viewing the defendant’s affidavit where the notice of intention to defend raises a triable issue which can only be resolved by the court after hearing evidence, the defendant is not required to prove his defence but to disclose same, albeit on the merits.”
The above quoted principle can not be altered or denied. The trial judge was on strong ground of the principle of law in considering leave of court to defend the undefended list. In the instant matter at trial court, the appellant wanted extension to file defence, and the triaf court on 22-04-05, granted the application to file the notice of intention to defend and the court deemed the application and its affidavit evidence as deemed filed and served. The appellant’s affidavit in support of the intention to defend are contained at pages 34-38, and relevant paragraphs affidavits are paragraphs 4, 5(i), (ii), (iii), (iv), (v), (ix), (x), (xi), (xii), (xiii), (xiv), (xv),(xxiv), up to page 37 and 6(i), (ii), (iii) and (vi) which are hereby reproduced below:
(4.) That the Defendant has a defence on the merit to the plaintiff’s suit.
i. That the Defendant is a commercial bank under license from the Central Bank of Nigeria.
ii. That as a commercial bank the Defendant’s license covers keeping accounts and giving credit facility.
iii. That at all times material to the suit, the Defendant was not a investment bank or merchant bank, hence the Defendant was not engaged in investment or merchant banking.
iv. Further to 5(iii) hereof, the Defendant by it’s banking license and business object could not validly enter into profiting sharing investment venture with the Plaintiff.
v. that the plaintiff was never a customer of the Defendant, hence a customer-banker relationship never existed between the plaintiff and the Defendant.
vi. That DNA plus Resources and McDaniels & Anad Associates Limited were customers of the Defendant who maintained accounts at the Port Harcourt branch of the Defendant.
vii. That DNA plus Resources and McDaniels & Anad Associates Limited applied for credit facility of N8,500.000 though the Port Harcourt branch office of the Defendant.
viii. That the branch office of the Defendant had no powers to grant any form of credit facility, hence the application deposed in paragraph 4(vii) hereof was referred to the head office of the Defendant.
ix. That while the application was being processed, DNA Plus Resources and McDaniels & Anad Associates Limited applied to the plaintiff for a credit facility of N3,000,000.
x. That the Plaintiff granted the N3,000,000 facility to DNA plus Resources and McDaniel’s & Anad Associates Limited, subject to a guarantee from a bank.
xii that the letter dated 21/8/2001 and marked Exhibit A in the plaintiff’s affidavit was fraudulently prepared without the knowledge and consent of the Defendant by the Defendant’s then Port Harcourt Manager, Richard Ehikioya.
xiii That the Port Harcourt branch Manager of the Defendant had no authority or mandate to enter into any such transaction neither the plaintiff, hence was neither an agent or representative of the Defendant in the said transaction with the plaintiff.
xiv. That the Defendant only became aware of the transaction between the Plaintiff and Richard Ehikioya when it received the plaintiff’s solicitor’s letter dated 18/3/2002.
xxiv. That the cheque for N3,000,000 exhibited by the Plaintiff was not made in favour of DNA plus Resources and McDaniels & Anad Associates Limited.
xvi That the plaintiff did not advance sum of N3,000,000 to the Defendant, rather it was Mohammed Daniels Nat who received the cheque.
xvii. That Mohammed Daniels Nat is not a director, manager or agent of the Defendant.
xviii. That the plaintiffs claim in this matter is for N17,726,933.73.
i. That the Defendant has a defence on the merit to the plaintiff’s claim.
ii. That it would be in the interest of Justice to transfer this matter to the general cause fist,
iii. That the plaintiffs claim in this matter is for simple debt.
Now after scrutinizing appellant’s affidavit quoted above, fact is very clear that, the appellant did not furnish or exhibit its banking license and its memorandum and articles of Association to show the trial court its business power and reasons of aim. I accept the respondent’s reasoning that the words “no evidence” used by the trial judge in reference to the affidavit evidence is no more than a reference to failure of the appellant to furnish its banking licensed and the Memorandum of Articles, which could have enabled the trial court to see whether exhibit ‘A’ was ultra vires. It is no more in doubt that, an affidavit to defend any suit on the undefended list, must clearly state what the defence is at about and facts are relied upon, see Imo Concord Hotels Ltd v. Choice Supermarket (supra), where our learned brother Garba, JCA, stated effectively that:-
“The affidavit must condescend upon the particulars and as far as possible, deal specifically with the plaintiffs claim and affidavit and state clearly what the defence is and what facts are relied upon to support it. A mere general denial that the defendant is not indebted to the plaintiff is not sufficient,”  By a careful consideration of EXHIBIT ‘A” the appellant actually benefited from the loan it obtained from the respondent. From the above fact and those in EXHIBITS B, C and D, the appellant can not properly turnaround as submitted by the respondent, to impugn the real transaction when the respondent demanded the appellant rightly to fulfill its own obligation, see Samyinna vs. African Inter Bank (supra).
In conclusion, I am satisfied that in this matter, the appellant by his brief in issue 1 is deliberately avoiding payments of its debt to the respondent by hiding under their purported corporate banking which it could not show to the trial court to see the ultra vire it allegedly complained about. More over, the appellant had admitted that, the transaction between the respondent and the appellant’s branch manager in Port Harcourt was what happened.
A party, who has knowledge or is presumed to have knowledge of the existences of an illegality in a transaction and, entered into the transaction, can not latter label it as illegal and raise illegality as a defence. Equity shall not condone it, as one can not approbate and reprobate. In the instant case, as the appellant itself, through its Branch Manager at Port Harcourt, originated or perpetuated illegality and ultra vires acts, that appellant can not rely on it as defence, See Oyegoke v. Irigunh (2002) 5 NWLR (Pt. 760) 417 and Achu Vs. CSC, Cross Rivers State (2009) 3 NWLR (Pt. 1129) 475, 500 – 501.  I am of the considered view that the appellant’s branch Manager was its agent. The assertion that the branch Manager was sacked can not defend the appellant. It is also not indoubt that the appellant had agreed and actually made part payments by installment, and therefore, it must pay the balance as liquidated sum plus the agreed interest as stated by the respondent in its claim in the undefended list.
I therefore hold that the appellant did not show good defence in the affidavit evidence in support of its application to defend on merit. I affirm the decision of the trial court in its judgment. I resolve issue 1 in favour of the respondent and against the appellant. Appellant’s issue 2 is similar to the respondent’s issue 3.
Appellant argument is that the trial court wrongly granted unliquidated claim for interest under the undefendant list procedure which is not permissible in law. Appellant is of the view that EXHIBIT ‘C’ relied upon by the respondent and the trial court, was not a contract document and that it has no basis for the award of interest in this appeal. The appellant however admitted that the respondent claimed the sum of N17,726,833.73k being the principal and accrued profit sharing investment yield charge and then contended that the claim of both can not be divisible and therefore the respondents claim was a matter on liquidated and unliquidated claim, which could only be determined by transferring the suit to the general cause list for trail by oral evidence. The appellant urged the court to resolve issue 2 in its favour.
On the part of the respondent, its argument is that, the claim for interest at the lower court was based specifically on the rate of 5.5% as endorsed on the writ of summons at page 2 of the record, which is also contained in EXHIBIT C. Learned counsel for the respondent relied on the finding of the trial judge at page 120 of the record. The respondent has shown that the decision of the trial court was in relation to interest, was not appealed by the appellant, and therefore submitted that the finding of interest remains binding on the appellant’ counsel referred to and relied on the case of Opara v. Dowell Schlumberger (Nig) Ltd (2006) All FWLR (Pt. 336) 255 – 256, the respondent urges this court to resolve appellants issue No 2, which is similar to the respondent’s issue no 2.
I have carefully considered the parties arguments to ascertain whether the trial judge entered judgment under the undefended list for a claim for interest on unspecified rate.
In my considered opinion and based on finding, the appellant did not file any ground of appeal to the interest which the respondent claimed and which the trial court granted.
It is settled law that an appellant challenging a specific finding of court as the appellant has done in his issue 2 in the instant matter must raise a specific ground of appeal there on, See OTUEDON V. OLUGHOR (1997) 9 NWLR (Pt. 521 – 355; OPARA V. DOWELL SCHLUMBERGER (Nig) Ltd (supra).
MOREOVER, AS STATED BY THE SUPREME Court in the same cased Opara v. Dowell (supra), it is settled law that where a party fails to appeal against a finding of the trial court or the Court of Appeal, he cannot be heard to question that finding on appeal. Having reached that stage, appellant’s issue 2 and the respondent’s third issue, are resolved in favour of the respondent and against the appellant.
Appellant’s last issue, is whether the trial judge was right infer from the conduct of the appellant,  its admission of the respondent’s claim.
This is similar to the respondent issue No. 2
Without referring to the appellant’s argument, I am of the view that the trial judge was perfect in his judgment at page 112 of the record. His Lordship stated that:
“the defendant/appellant) clearly took advantage of the contract in EXHIBIT A and cannot turn round to deny the contract or its capacity to enter same with the respondent. The defendant then on 8-10-2002 forwarded a cheque for N310,000 and still did not challenge the validity of the transactions 6 months after EXHIBIT G. The conduct of the defendant in this matter shows clearly an admission that the defendant was at all material times, liable to pay the sum in issue and did infact do so in part, having undertaken to do so in Exhibit A”
In my considered opinion, from the passage of the judgment just reproduced, I entirely agree that from the totality of the conduct of the appellant, it was not even necessary to infer the fact, but it was the reality for the appellant it requested the respondent to give which was received. The issue is resolved in favour of the respondent and against the appellant. I affirm the decision of the lower court.
In the final analysis the appeal has no merit whatsoever. It is dismissed with cost of N60,000.00 in favour of the respondent and against the appellant.

M. DATTIJO MUHAMMAD, J.C.A.: I read in draft the lead judgment of my learned brother Thomas JCA and agree with him that the appeal lacks merit and do hereby, on the basis of the reasonings articulated by his lordship, dismiss the appeal. I abide by the consequential orders reflected in the lead judgment.

TUNDE O. AWOTOYE, J.C.A.: I have read the draft of the judgment of my learned brother Thomas JCA I agree with him that this appeal lacks merit.
The Appellant in its affidavit in support of Notice of intention to defend did not condescend on particulars but was satisfied with making general statements, See ATAGUBA & CO. V. GURA (NIG) LTD (2005) 8 NWLR (PT 927) 429; which is not acceptable under undefended list procedure.
By a letter dated 18/3/2002, written by Johnson T.O. Ugbodima, solicitors to the Respondent, the Respondent confronted the Managing Director of the Appellant with the marked facts of this case along with relevant document. See Exhibit F. The receipt of the second letter was acknowledged on 30/4/2002, See Exhibit G.
About 3 months later when there was no clear positive response from the appellant, Respondent caused its solicitor to write another letter which states inter alia as follows:-
“In the meantime the outstanding balance arising from above transaction payable by you to our client now stands at N4,484,903.23 (Four Million, Four Hundred and Eighty Four Thousand, Nine Hundred and Three Naira, Twenty Three Kobo as at 30th June, 2002.”
Until the Respondent instituted the action on 3/8/2004, more than two years after plaintiff’s letter, the Appellant did not deny the allegation in the letters. Rather it claimed in Exhibit G”.
To have carefully reviewed your subject letter and taken steps to effectively address the matters raised therein”
In paragraph 5(xii) of the affidavit in support of Notice of Intention to defend on merits the Appellant averred that its Port Harcourt Branch Manager fraudulently prepared without its knowledge and consent Exhibit A. When did this come to its notice? The allegation of fraud is serious enough to require that the person alleged to have committed it be reported to the police. Where is the police report?
The impression one has is that the Appellant merely cooked up all these in order to escape its obligation under the transaction.
The interest element now being challenged seems a strange development. The challenge only sprang up after the institution of the action. The letter served on the appellant could not provoke the defence.
It was not challenged by the Appellant until the Respondent instituted the action. In the face of the letters of Respondents solicitors and the relevant documents, attached to the Appellant the contents of which the Appellant never denied until the commencement of this action and the failure of the Appellant to exhibit any document to rebut the documents attached to the affidavit in support of Respondent/Plaintiff’s application. I hold that there is enough evidence before the court below to justify the conclusion of the learned trial Judge. If the Manager of Port Harcourt Branch was not authorized to be involved in such transaction and the Appellant got to know about it what did it do and where are documents to show that such or any action was taken at aff on it. It is clear the Port Harcourt Manager acted as an agent of the Bank. In case of default of an agent, the principal, in this case the Appellant can be liable. See FCDA v EZINKWO (2007) 18 WRN 158 at 178; KHONAN V. JOHN (1935) 15 NLR 12; OWENA BANK PLC V. OLATUNJI (2002) 12 NWLR (PT 781) 255 FBN PLC V. EXCEL PLASTICS IND. LTD. (2003) FNLR (PT 160) 1624.
The defence of the Appellant at the court below seems to be an after thought to me and do not appear to have any merit.
It is for the above reasons and the fuller reasons in the lead judgment that I also dismiss the appeal for lack of merit.
I abide by the order as to costs as assessed in the lead judgment.
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