TILLEY GYADO & COMPANY NIGERIA LIMITED v. ACCESS BANK PLC & ORS
(2019)LCN/12645(CA)
In The Court of Appeal of Nigeria
On Monday, the 4th day of February, 2019
CA/J/102/2012(1)
RATIO
AFFIDAVIT: DENIAL OF AFFIDAVIT
“It is trite law that a denial in an affidavit must be precise, concise and exact and it must not give room for conjecture or speculation, otherwise it is in law and fact not a denial. Chairman, Economic and Financial Crimes Commission Vs Littlechild (2016) 3 NWLR (Pt 1498) 72, Jukok International Ltd Vs Diamond Bank Plc (2016) 6 NWLR (Pt 1507) 55. Further, it was not the case of the Appellant in the affidavit that it paid down any portion of the said sum of N91,481,560.49 after the receipt of Exhibit I. It is settled law that where the customer of a bank admits taking a loan facility, it has the duty and responsibility of proving that it had repaid the loan. Ishola Vs Societe Generale Bank (1997) SCNJ 23 and Saleh Vs Bank of the North Ltd (2006) 6 NWLR (Pt 976) 316.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: WHETHER ISSUE NOT RAISED IN THE TRIAL COURT CAN BE THR GROUND OF APPEAL
“An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court V S Steel (Nig) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1. A party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case. Suberu Vs State (2010) 8 NWLR (Pt 1197) 586, Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus: It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
CONTRACT: WHERE A PARTY FAILS TO RESPOND TO A BUSINESS LETTER
“It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. Gwani Vs Ebule (1990) 5 NWLR (Pt 149) 201, Trade Bank Plc Vs Chami (2003) 13 NWLR (Pt 836) 158, Zenon Petrol & Gas Vs Idrissiya Ltd (2006) 8 NWLR (Pt 982) 221, Nagebu Co. (Nig) Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42, Bagobiri Vs Unity Bank Plc (2016) LPELR 41161(CA), Amber Resources Nigeria Ltd Vs Century Energy Services Ltd (2018) LPELR 43671(CA), Fam-Lab Nigeria Limited Vs Jahmarco Nigeria Limited (2018) LPELR 44730(CA). In I.O.M. Nwoye & Sons Company Ltd Vs Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt 310) 210 the Court held that where a bank makes demands for settlement of debt by letters and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letters as the overall debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due.” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
COURT AND PROCEDURE: UNDEFENDED LIST PROCEDURE
“In other words, under the Undefended List Procedure, the writ of summons, supported by the affidavit of facts, is itself an application for judgment and where a defendant files a notice of intention to defend, there is no need for any oral hearing before a trial Court determines whether or not to give leave to defence or to enter judgment in favour of the claimant, and all the trial Court is obligated to do is look at the facts on the affidavits of the parties and come to a conclusion thereon. Ekulo Farms Ltd Vs Union Bank of Nigeria Plc (2006) 4 SC (Pt II) 1, Abubakar Vs Modibo (2008) All FWLR (Pt 400) 751, Wema Securities and Finance Plc Vs Nigeria Agricultural Insurance Corp (2015) 6 NWLR (Pt 1484) 93, Ifeanyichukwu Trading Investment Ventures Limited Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Nigerian Ports Authority Vs Aminu Ibrahim & Co (2018) LPELR 44464(SC). There is thus no need for any other application, oral or written, to be made or filed before a trial Court enters judgment under the Undefended List Procedure. The provision of Order 30 Rule 3 of the High Court of Plateau State (Civil Procedure) Rules does not apply to actions commenced under the Undefended List Procedure. Darlvis Investments Ltd Vs Hall Mark Bank Plc (2009) LPELR 8415(CA).” PER HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
TILLEY GYADO & CO (NIG) LTD Appellant(s)
AND
1. ACCESS BANK PLC
2. SENATOR JACOB TILLEY-GYADO
3. ASSETS MANAGEMENT CORPORATION OF NIGERIA Respondent(s)
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision contained in the Ruling of the High Court of Plateau State delivered by Honorable Justice Y. B. Nimpar (as he then was) in Suit No PLD/J/599/2010 on the 8th of March, 2012.
The first Respondent, under its former name of Intercontinental Bank Plc, commenced the action in the lower Court against the Appellant and the second Respondent under the Undefended List Procedure and the claims were for:
i. The sum of N153,929,414.06 being the outstanding balance owed and due to the first Respondent as at 30th of November, 2010.
ii. Interest on the sum of N153,929,414.06 at the rate of 19% per annum from the 30th of November, 2010 until judgment is delivered.
iii. Interest on the judgment sum at the rate of 10% from the date of the judgment until judgment is liquidated.
iv. Cost of the action.
The case of the first Respondent on the affidavit of facts was that the Appellant was its customer at its Jos Branch while the second Respondent was the alter ego of the Appellant and that in November, 2007, the Appellant sought for and was granted a revolving overdraft facility of N30 Million on terms and conditions contained in a letter dated the 21st of November, 2007 and attached as exhibit. It was the case of the Respondent that in 2008, the Appellant sought for and was granted an enhancement of the overdraft facility by an additional sum of N25 Million, bringing the total facility to N55 Million, on terms and conditions contained a letter dated the 4th of February, 2008 and attached as exhibit. It was its case that in June 2008, the Appellant applied for and was granted a further enhancement of the overdraft facility by a further sum of N25 Million, taking the total facility to N80 Million, on terms and conditions contained in a letter dated the 20th of June, 2008 and accepted by the Appellant, and attached as exhibit.
It was the case of the first Respondent that the facility was secured by a tripartite legal mortgage over a landed property, a lien created over Union Bank shares owned by the second Respondent and a personal guarantee of the second Respondent. It was its case that the Appellant has failed to repay the facility with the attendant interests despite repeated demands and written admission of indebtedness and the letter admitting the indebtedness and one of the letters of demand showing that the indebtedness stood at N91,481,460.49 as at 12th of May, 2009 were attached as exhibits. It was its case the indebtedness of the Appellant, and guaranteed by the second Respondent, stood at N153,929,414.06 as at 30th of November, 2010 as evienced by a statement of account attached as exhibit and that the sum claimed is a liquidated demand and that the Appellant and the second Respondent had no defence to the claim.
Upon being served with the originating processes, the Appellant filed a notice of intention to defend and this was supported by an affidavit of facts. The Appellant did not deny applying for and obtaining an overdraft facility totaling N80 Million from the first Respondent, but it was his case that it was incorrect that its liability to the first Respondent on the facility stood at N153,929,414.06 as at 30th of November, 2010 and that its liability to the first Respondent was stated to be N91,481,460.49 as at the time of its last communication from the first Respondent and that the statement of account attached as an exhibit was frivolous and prejudicial to the integrity of its account. It was its case that sometime in March 2009 it discovered some unconventional, unauthorized and unexplained debit entries in its statement of account with the first Respondent and consequent on which it engaged the services of Messrs Eagle Inspection Limited to scour through its statements of account to identify the debit entries. It was its case that from the report of Messrs Eagle Inspection Limited, wrong debits totaling N10,754,350.24k were discovered in its statements of account and by reason of which it commenced an action in Suit No PLD/J224/2009 against the first Respondent in the High Court of Plateau to question the arbitrary debits and which action was still pending.
It was the case of the Appellant that there had been further unconventional debits in the statements of account after it commenced Suit No PLD/J224/2009 and it thereafter proceeded to itemize the alleged arbitrary and unconventional debits. It was its case that the first Respondent perpetuated a fraud on its account and it gave the particulars of the fraud and stated that it has a strong defence to the suit. It was its case that the present action was incompetent in view of the pendency of Suit No PLD/J224/2009 and it was commenced to overreach the pending action and that it would be injurious to the interest of the Appellant if the action is determined under the Undefended List. The Appellant attached no exhibit to its affidavit of facts.
The records of appeal show that the Appellant subsequently filed a motion on notice praying for an order dismissing the suit for being incompetent and an abuse of process in view of Suit No PLD/J224/2009. The records show that the parties joined issues on the motion and filed written addresses thereon, and that the motion was thereafter withdrawn by the Counsel to the Appellant and it was struck out by the lower Court. The lower Court heard the matter under the Undefended List and it delivered a considered Ruling wherein it entered part judgment in favour of the first Respondent in the sum of N91,481,560.49 on the ground that the sum was admitted by the Appellant, together with post judgment interest of 10% thereon and it transferred the balance sum of N62,449,853.60 to the general cause list for trial.
The Appellant was dissatisfied with the decision and it caused its Counsel to file a notice of appeal containing seven grounds of appeal and dated the 16th of March, 2012 against it. The records of appeal were compiled and transmitted to this Court on the 9th of May, 2001 and the parties to the appeal at this time were the Appellant and Intercontinental Bank Plc as the respondent. Intercontinental Bank Plc was subsequently substituted with the first Respondent, Access Bank Plc, and the second and third Respondents were joined as parties in the appeal by an order of this Court. The notice of appeal was amended and further amended by the Appellant, with the leave of Court, and a Further Amended Notice of Appeal dated the 13th of March, 2015 was filed on the 21st of May, 2015 and it was deemed properly filed and served by this Court on 21st of December, 2016 and it contained eight grounds of appeal. The Appellant was also granted leave by the Court to file further evidence on appeal and it filed an Affidavit of Further Evidence on the 17th of May, 2017.
In arguing the appeal before this Court, Counsel to the Appellant filed a further amended brief of arguments dated the 17th of May, 2017 on the 19th of May, 2017 and which was deemed properly filed and served by the Court on the 19th of October, 2017. In response, Counsel to the first and third Respondents filed an amended brief of arguments dated the 3rd of May, 2018 on the 4th of May, 2018 and the brief of arguments was deemed properly filed and served by this Court on the 19th of September, 2018. Counsel to the Appellant filed a Reply brief of arguments dated the 5th of November, 2018 on the 7th of November, 2018 and the Reply brief of arguments was deemed properly filed and served by the Court on the 8th of November, 2018. At the hearing of the appeal, Counsel to the Appellant and Counsel to the first and third Respondents relied on and adopted the arguments contained in their respective briefs of arguments as their submissions on the appeal. The second Respondent was represented by Counsel and the Counsel informed the Court that they were not contesting the appeal.
Counsel to the Appellant distilled six issues for determination in the appeal and these are:
i. Whether the learned trial Judge was right to hear the first Respondent’s claim as submitted before it under the Undefended List and, if yes, whether the Appellant admitted the sum of N91,481,560.49 as its indebtedness to the first Respondent to justify and support the part judgment entered in favour of the first Respondent under the Undefended List procedure.
ii. Whether the learned trial Judge had the requisite jurisdiction to hear and determine Suit No PLD/J599/2010 under the Undefended List Procedure when Exhibit SFRA 1 was placed before it evidencing the pendency of Suit No PLD/J244/2009 between the same parties and on the subject matter and, if not, whether the hearing was not a violation of the Appellant?s fundamental right to fair hearing.
iii. Whether the learned trial Judge was not in error when he entered part judgment of N91,481,560.49 which represents the alleged overdraft facility of N80 Million and other interest and charges being disputed and transferred the sum of N62,440,853.60 which represents interest and other charges to the General Cause List for proof.
iv. Whether the learned trial Judge was right and indeed had the requisite jurisdiction to decide and pronounce on a claim in excess of what was formulated and submitted by the first Respondent for determination and, if not, whether the decision of 3rd of August 2012 in all its ramifications is not premised on a nullity.
v. Whether the part judgment entered on 3rd of August 2012 in favour of the first Respondent by the learned trial Judge was in compliance with the extant rules of the trial Court and in accord with judicial pronouncements on the issue of part judgment.
vi. Whether or not the first Respondent had the locus standi to maintain this suit at the lower Court, and if not, whether the lower Court had jurisdiction to entertain same, in particular view of the assignment by the first Respondent of the subject thereof to the third Respondent, prior to the commencement of the suit at the trial Court.
In arguing the first issue for determination, Counsel to the Appellant referred to the case of UBA Plc Vs Mode (Nig) Ltd (2001) 13 NWLR (Pt 335) 362 in highlighting the problems attendant to suits brought under the Undefended List Procedure and stated that the claims of the first Respondent as formulated before the lower Court fell outside a liquidated money demand that can be recovered under the Undefended List Procedure as provided for in Order 23 Rule 1 of the Plateau State High Court (Civil Procedure) Rules 1987. Counsel thereafter referred to the cases of Iron Production Ltd Vs Sentinel Assurance Co. Ltd (1992) 4 NWLR (Pt 238) 734 and Onadeko Vs UBN Plc (2005) 4 NWLR (Pt 916) 440, amongst others, on the definition of liquidated money demand and he reproduced the claims of the first Respondent before the lower Court and stated that the claim of the first Respondent for pre-judgment interest fell outside the claims cognizable under the Undefended List and he referred to the cases of Ogbonna Vs Ukaegbu (2005) 17 NWLR (Pt 954) 432, Ekerete Vs UBA Plc (2005) 9 NWLR (Pt 930) 401 and NIPOST Vs I. Eng. Co Ltd (2006) 8 NWLR (Pt 983) 435.
Counsel stated that the complaint of the Appellant on unauthorized debits made into its account raised a triable issue and that once the lower Court found that these complaints existed it was duty bound to transfer the entire claim to the General Cause List because a triable issue was disclosed, and it should not have entered part judgment for the first Respondent, and he referred to the cases of Befareen Pharm. Ltd Vs AIB Ltd (2005) 17 NWLR (Pt 954) 230, Kaduna State Transport Authority Vs Ofodile (1999) 10 NWLR (Pt 622) 259 and Brifina Ltd Vs Intercontinental Bank Ltd (2003) 5 NWLR (Pt 814) 540. Counsel stated further that the Appellant attached the amended statement of claim in Suit No PLD/J244/2009 as Exhibit SFRA 1 and the averments in the pleadings constituted a contest to the claim of the first Respondent in this suit and that it was clear that until a conclusion of that matter, it would be impossible to say for certain that the indebtedness of the Appellant was N153,929,414.06 or any liquidated sum. Counsel stated that the issue of competence of the action raised in the affidavit in support of the notice of intention to defend amounted to a triable issue because the moment it is established the action was predicated on un-liquidated sum, the action will be foreclosed under the Undefended List or be transferred to the general cause list and he referred to the cases of Best Vision Center Ltd Vs UAC NPDC Plc (2003) 13 NWLR (Pt 838) 594, AG Lagos State Vs Eko Hotels (2006) 18 NWLR (Pt 1011) 378 and Intercity Bank Plc Vs FTA Ltd (2006) 4 NWLR (Pt 971) 504.
Counsel stated that assuming the action was properly commenced under the Undefended List, the lower Court was in error when it found that the Appellant admitted the sum of N91,481,560.49 as no such admission was present in the documents before the lower Court. Counsel referred to the case of ATM Plc Vs BVT Ltd (2007) 1 NWLR (Pt 1015) 259 on what amounts to an admission in law and stated that the characteristics of an admission is that it must be full, clear, unambiguous and freely made and that nothing meeting these characteristics was present or could be inferred from the letter of the Appellant addressed to the first Respondent on the indebtedness, Exhibit H. Counsel stated that the lower Court read the words of the letter out of con and that the decision of the lower Court was a product of speculation and conjecture and a Court of law is not allowed to speculate or resort to conjectures and he referred to the cases of Nwachukwu Vs State (2002) 8 NWLR (Pt 751) 366, ACB Plc Vs Emostrade Ltd (2002) 8 NWLR (Pt 770) 501 and Olalomi Industries Ltd Vs NIDB (2002) FWLR (Pt 131) 1984.
Counsel stated that Exhibit I, the letter of demand, was vehemently disputed by the Appellant filing Suit No PLD/J244/2009, Exhibit SFRA 1, and the fact of the existing suit was not disputed by the first Respondent and that it is trite that where a material fact in an affidavit is not controverted, it should be deemed admitted and he referred to the case of Ejikeme Vs Ibekwe (1997) 7 NWLR (Pt 571) 592. Counsel stated further that Exhibit I was culled from Exhibit J which was disputed by the Appellant in Exhibit SFRA 1 with the allegations of fraudulent debits and that the lower Court should not have accorded Exhibit I any probative value and should have let the Appellant in to defend the entire claim and he referred to the case of Agwunene Vs Eze (1990) 3 NWLR (Pt 137) 242. Counsel urged the Court to resolve the issue for determination in favour of the Appellant.
On the second issue for determination, Counsel stated that the lower Court lacked jurisdiction to entertain the suit because of the pendency of Suit No PLD/J244/2009 and which fact was brought to the notice of the lower Court by Exhibit SFRA 1 and he referred to the case of Dongtoe Vs CSC Plateau State (2001) 9 NWLR (Pt 717) 150 on the importance of jurisdiction. Counsel reproduced the indices of jurisdiction as established in the case Madukolu Vs Nkemdilim (1962) 1 All NLR 584 and stated that the present case was commenced without regard to due process and in desperation to overreach the outcome of the pending action and that it is the abuse of process inherent in the present case that divested the lower Court of jurisdiction to entertain it. Counsel stated that the issue of jurisdiction was raised in the affidavit in support of the notice of intention to defend and that where the issue of jurisdiction is ex-facie on the processes before a Court, the Court may raise it suo motu, even where it is not constituted as an issue by the parties and he referred to the case of Awoyemi Vs Fasuan (2006) 13 NWLR (Pt 996) 86. Counsel urged the Court to hold that the lower Court lacked jurisdiction to hear and determine the suit and to resolve the issue for determination in favour of the Appellant.
With regards to the third issue for determination, Counsel stated that the lower Court was in error when it entered part judgment in the sum of N91,481,560.49 under the Undefended List, which represented the overdraft facility in the sum of N80 Million and interest element of N11,481,560.49, and transferring the remainder sum of N62,449,853.60 to the general cause list and that once the lower Court found that there were triable issues raised by the complaint of arbitrary charges, it ought to have transferred the entire claim to the general cause list and not fragment same. Counsel stated that the complaints of the Appellant on arbitrary charges included the amounts making up the N11,481,560.49 interest elements in the judgment sum and failure to transfer the sum for proof under the general cause list amounted to the lower Court taking a double position and that this is not allowed in law and he referred to the case of Okem Enterprises Nig Ltd Vs Igbo (2003) 5 NWLR (Pt 813) 376. Counsel urged the Court to resolve the third issue for determination in favour of the Appellant.
In arguing the fourth issue for determination, Counsel reiterated the established principle of law that a Court has no jurisdiction to make an award in excess of the sum claimed before it and must restrict itself within the ambit of the claims and not go outside them to grant what is not claimed and he referred to the cases of AG Fed Vs AIC Ltd (2000) 10 NWLR (Pt 675) 293 and UTA French Airlines Vs Williams (2000) 14 NWLR (Pt 687) 271, amongst others. Counsel stated that the claim of the first Respondent before the lower Court was N153,929,414.06 and that the lower Court entered part judgment in the sum of N91,481,560.49 and transferred the remainder sum of N62,449,853.60 for consideration under the general cause list and that when the two sums are added together they come to N153,931,414.09 and that this was in excess of the sum of N153,929,414.06 claimed by the first Respondent. Counsel stated that the lower Court increased the sum claimed by the first Respondent suo motu and it thus evolved a new case and it is settled that a trial Court cannot evolve a new case for parties and proceed to enter judgment thereon and he referred to the cases of Orizu Vs Anyaegbunam (1978) 5 SC 1 and Osagie Vs Adonri (1994) 6 NWLR (Pt 349) 131. Counsel stated that it would be preposterous to brook the argument that the difference in the sums is a mere slip which does not fundamentally affect the decision of the lower Court because the error is actually fundamental and goes to the root of the entire case. Counsel urged the Court to thus resolve the issue for determination in favour of the Appellant.
On the fifth issue for determination, Counsel referred to the provisions of Order 30 Rule 3 of the Plateau State High Court (Civil Procedure) Rules 1987 and the case of Mosheshe General Merchant Ltd Vs Nigeria Steel Products Ltd (1987) 1 NSCC 502 on the power of the lower Court to enter judgment on admissions and stated that the power was only exercisable after an application, oral or formal, has been made by the party entitled for the entry of such judgment. Counsel also referred to the case of ATM Plc Vs BVT Ltd (2007) 1 NWLR (Pt 1015) 259 in assertion of the fact that a party entitled to judgment on admission for part of sum claimed in an action under the Undefended List can only apply for the party judgment after the matter has been transferred to the general cause list, and not before. Counsel stated that the lower Court entered part judgment in favour of the first Respondent in the sum of N91,481,560.49 without an application, oral or formal, having been first made by the first Respondent and while the matter was still being heard under the Undefended List and that there was thus non-compliance with the mandatory provisions of the Rules of Court and of the law in the entry of the part judgment and the judgment is thus unsustainable in law. Counsel urged the Court to resolve the fifth issue for determination in favour of the Appellant.
With regards to the sixth issue for determination, Counsel stated that there was evidence produced before Court by the Appellant, and which was discovered after the part judgment was entered in the lower Court and the appeal filed, that by a Loan Purchase and Service Agreement, the first Respondent assigned the debt due to it from the Appellant in the total sum of N153,929,414.06 to the third Respondent with effect from the 1st of January, 2011, and that this was the same sum claimed by the first Respondent in the lower Court in the present action. Counsel stated that the writ of summons placing this matter under the Undefended List was issued by the High Court on the 26th of January, 2011, after the assignment of the debt and at a time the first Respondent no longer had vested interest in the subject matter of the suit, which interest had become vested in the third Respondent and who was not made a party to the action.
Counsel stated that the necessary inference from these state of affairs is that at the time of commencement of the action, the first Respondent had no locus standi, no sufficient interest in the subject matter, to institute the action and he referred to several cases including Adesanya Vs President, Federal Republic of Nigeria (1981) 2 NCLR 358, Iteogu Vs LPDC (2009) 17 NWLR (Pt 1171) 614 on the meaning of locus standi. Counsel stated that it is settled law that where an action is commenced by a writ of summons, it is only on the issuance of the writ of summons by either a Judge or the Registrar that the action is deemed commenced, and not before, and he referred to the case of RMAFC Vs Onwuekweikpe (2009) 15 NWLR (Pt 1165) 592. Counsel stated that, therefore, as the 26th of January, 2011 when the writ of summons was issued in the lower Court to ignite the jurisdiction of the lower Court to hear the matter, the first Respondent had no locus standi to institute and maintain the action, and as such the lower Court did not possess the requisite jurisdiction to entertain the action and he referred to the case of A. G. Ekiti State Vs Daramola (2003) 10 NWLR (Pt 827) 1044. Counsel urged the Court to resolve the sixth issue for determination in favour of the Appellant.
Counsel concluded his arguments in the appeal by praying the Court to find merit in the appeal and to allow same and set aside the judgment of the lower Court.
On his part, learned senior Counsel to the first and third Respondents distilled five issues for determination in the appeal and these are:
i. Whether having regard to the facts and circumstances of this case as well as the affidavit evidence exchanged by the respective parties, the learned trial Judge was right to hear the Respondent?s claim as submitted before it under the Undefended List and, if yes, whether the Appellant admitted the sum of N91,481,560.49 as their indebtedness to the Respondent under the Undefended List Procedure.
ii. Whether the Ruling of the trial Judge in Suit No PLD/J/599/2010 delivered on 8th March, 2012 was based on a claim not before him.
iii. Whether the learned trial Judge had the requisite jurisdiction to hear and determine Suit No PLD/J/599/2010 under the Undefended List Procedure.
iv. Whether the learned trial Judge was right to have entered judgment with respect to the amount admitted under the Undefended List Procedure and transferred the disputed sum to the General Cause List.
v. Whether the first Respondent had the requisite locus standi to maintain this suit at the lower Court.
In arguing the first issue for determination, Counsel stated that it is axiomatic in law that when a plaintiff claim is for recovery of debt or a liquidated money demand, it is an action that can be lawfully and conveniently entertained and heard under the Undefended List Procedure and he referred to the case of Epe L.G. Vs Keshinro (2009) 4 NWLR (Pt 1131) and which case also defined what a liquidated money demand is. Counsel stated that it was not in contest between the parties that the first Respondent granted overdraft facility to the Appellant payable within a fixed period and that the Appellant failed to repay the facility at the expiration of the period and that this was the foundation of the case before the lower Court. Counsel reproduced the claims of the first Respondent before the lower Court and stated that it was beyond doubt that the action was for recovery of debt and that the lower Court was thus correct when it placed and heard the matter under the Undefended List.
Counsel stated that the contention of Counsel to the Appellant that a claim for pre-judgment interest falls outside the claims under the Undefended List Procedure is misconceived and that the law is that where parties to an overdraft facility have mutually agreed on the interest chargeable on the overdraft, a claim for the agreed interest can be conveniently claimed under the Undefended List Procedure and he referred to the cases of Afribank (Nig) Plc Vs A. I. Invest Ltd (2002) 7 NWLR (Pt 765) 40 and NIPOST Vs Zaadeco Ltd (2006) 7 NWLR (Pt 979) 231. Counsel stated that a read through the terms and conditions of the overdraft facilities extended to the Appellant, and contained in Exhibits B, D and F, shows that there was a mutual agreement between the parties on the rate of interest payable on the facilities and that it is obvious therefrom that the sum payable as interest was capable of being ascertained by mere arithmetic without taking of evidence or further investigation and thus comes within the definition of a liquidated money demand and he referred to the case of NIPOST Vs Irbok (Nig) Ltd (2006) 8 NWLR (Pt 982) 323. Counsel stated that the contention of Counsel to the Appellant on pre-judgment interest would only hold true in cases where the interest rate payable had not been mutually agreed or contemplated by the parties, and that this was not the position in the instant case.
Counsel stated that also the contention of the Appellant that the lower Court ought not to have entertained the case of the first Respondent under the Undefended List because the complaint of the Appellant of unauthorized debits in the account was baseless. Counsel stated that while the complaint of authorized debit might indeed raise triable issues, it did not affect the entire claim of the first Respondent before the lower Court as it did not derogate from the fact that the Appellant applied for and was granted overdraft facility of N80 Million and from the fact that the Appellant admitted the sum of N91,481,560.49 and that as such the lower Court acted within its powers when it entered judgment for the admitted sum of N91,481,560.49 under the Undefended List and transferred the balance affected by the complaints of unauthorized debits to the general cause list and he referred to the case of Mosheshe General Merchants Ltd Vs Nigeria Steel Products Ltd (1987) 1 NSCC 502.
Counsel stated that the further contention of Counsel to the Appellant that the pendency of Suit No PLD/J244/2009, Exhibit SFRA 1, and that the assertions in that case changed the character of the claims of the first Respondent to un-liquidated money demand was similarly without merit. Counsel stated that what determines whether a claim is a liquidated money demand is not the defence of a defendant, but the claim of a plaintiff as framed before the Court and he referred to the case of ASTC Vs Quorum Consortium Ltd (2009) 9 NWLR (Pt 1145) 1. Counsel stated that a cursory look at the claims of the first Respondent on the writ of summons and the contents of the affidavits in support shows that the claims were for a liquidated money demand and this the pendency of Suit No PLD/J244/2009, Exhibit SFRA 1, did not change the character of the claims and it merely raised triable issues to a portion of the claims and which portion the lower Court transferred to the general cause list.
On the issue of the admission of the sum of N91,481,560.49, and in respect of which the lower Court entered part judgment, Counsel referred to the cases of Unibiz Ltd Vs CBL (2005) 14 NWLR (Pt 944) 59, Oziabu Eng Co Ltd Vs Iwuamadi (2009) 16 NWLR (Pt 1166) 44 and Ononaku Vs Akubue (2009) 15 NWLR (Pt 1165) 539 in assertion of the law that facts in an affidavit not denied nor contradicted are deemed admitted and he also referred to paragraph 14 of the affidavit in support of the writ of summons where the first Respondent referred to a letter of demand written to the Appellant, Exhibit I, and in which letter the first Respondent informed the Appellant that its indebtedness on the overdraft facility stood at N91,481,560.49 as at 12th of May, 2009. Counsel stated that the Appellant did not deny the deposition in paragraph 14 or the contents of Exhibit I in the affidavit in support of the notice of intention to defend, and that rather, the Appellant in paragraph 4 (iii) of its affidavit admitted the amount claimed in Exhibit I. Counsel stated that the lower Court cannot thus be faulted for entering part judgment in favour of the first Respondent for the admitted sum of N91,481,560.49 and he referred to the case of Obitude Vs Onyesom Community Bank Ltd (2014) 9 NWLR (Pt 1412) 352.
Counsel stated that in a case where the claim of the claimant is for repayment of facility extended to a defendant, and commenced under the Undefended List, the only defences available to the defendant are either that he had paid back the loan or that he never borrowed the money and that where the defendant states neither but rather indulges in a rigmarole of facts, he will be held not to have a defence and would not be allowed to frustrate the claim of the claimant by delaying tactics and he referred to the case of Okoli Vs Morecab Finance (Nig) Ltd (2007) 14 NWLR (Pt 1053) 37. Counsel stated that the Appellant admitted seeking for and obtaining the sum of N80 Million from the first Respondent as overdraft facility and that the facility attracted interest, and that nowhere in its entire notice of intention to defend did it assert that it had paid back the loan, that rather, the Appellant admitted that the outstanding on the facility as at 12th of May, 2009 stood at N91,481,560.49. Counsel referred to the cases of Federal Ministry of Health Vs Comet Shipping Agencies Ltd (2009) 9 NWLR (Pt 1145) 193 and Ekpemulopo Vs Edremoda (2009) 8 NWLR (Pt 1142) 166 in asserting the fact that what is admitted needs no further proof and stated that the Appellant?s notice of intention to defend did not disclose a defence to the sum of N91,481,560.49 and the lower Court was thus right in entering part judgment for the sum. Counsel urged the Court to resolve the first issue for determination in favour of the first and third Respondents.
In arguing the second issue for determination, Counsel stated that the contention of the Counsel to the Appellant that the lower Court pronounced judgment on a claim in excess of what was before it and thus exceeded its jurisdiction is misplaced as the claim of the first Respondent was for N153,929,414.06 while the sum awarded by the lower Court in the judgment appealed against was N91,481,560.49. Counsel stated that while it is correct that when sum awarded in the judgment, N91,481,560.49, is added to the sum transferred to the general cause list for trial, N62,449,853.60, it comes to the sum of N153,931,414.09 which is higher than the sum claimed by the first Respondent, that was not the sum awarded by the lower Court. Counsel stated further that even if the argument of Counsel to the Appellant is to be accorded any value, the difference between the total sum claimed and the sum of N153,931,414.09 is so negligible as to qualify a minor slip which cannot affect the substance of judgment of the lower Court and he referred to the cases of Abubakar Vs B.O & AP Ltd (2007) 18 NWLR (Pt 1066) 319 and NBC Plc Vs Olanrewaju (2007) 5 NWLR (Pt 1027) 255. Counsel urged the Court to resolve the issue in favour of the first and third Respondents.
With regards to the third issue for determination, Counsel stated that the argument of Counsel to the Appellant that the lower Court lacked the requisite jurisdiction to entertain the action before it under the Undefended List in view of the pendency of Suit No PLD/J244/2009, Exhibit SFRA 1, is lame and handicapped. Counsel referred to the cases of Sun Insurance Plc Vs Umez Engineering Construction Co Ltd (2015) 11 NWLR (Pt 1471) 576 and Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26 in asserting the fact that what determines the jurisdiction of a Court is the claim of the claimant and stated that the claims of the first Respondent before the lower Court was for recovery of debt and it was clear that the claims were well within the jurisdiction of the lower Court. Counsel stated that the pendency of Suit No PLD/J244/2009, Exhibit SFRA 1, did not render the present case before the lower Court an abuse of process as it did not constitute a multiplicity of actions in that the parties in the two suits and the claims were not the same and he referred to the cases of Okafor Vs A-G Anambra State (1991) 6 NWLR (Pt 200) 659 and NV Scheep Vs MV ?S. Araz? (2000) 15 NWLR (Pt 691) 622. Counsel urged the Court to resolve the third issue for determination in favour of the first and third Respondents.
In arguing the fourth issue for determination, Counsel stated that the understanding and interpretation given to Order 30 Rule 3 of the High Court of Plateau State (Civil Procedure) Rules 1987 vis–vis an action commenced under the Undefended List Procedure were grossly misconceived because the law is clear that a trial Court has the power to enter part judgment for an admitted sum under the Undefended List, and to transfer the disputed sum to the general cause list, without the need for any other application, oral or written, for judgment on admission and he referred to the case of Mosheshe General Merchants Ltd Vs Nigeria Steel Products Ltd supra. Counsel stated that the submissions of Counsel to the Appellant on the import of Order 30 Rule 3 of the High Court of Plateau State Rules will only be applicable in an action commenced under the general cause list and not to cases under the Undefended List Procedure which are governed by Order 23 of the High Court of Plateau State Rules 1987. Counsel urged the Court to resolve the fourth issue for determination in favour of the first and third Respondents.
On the fifth issue for determination, Counsel referred to the cases of Thomas Vs Olufosoye (1986) 1 NWLR (Pt 18) 669, Mokelu Vs Nwoye (2017) 9 NWLR (Pt 1569) 1 and Oyedoke Vs The Registered Trustees of CAC (2001) 3 NWLR (Pt 701) 621 on the definition of the term ‘locus standi’ and the case of Global Transport Oceanico SA Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426 is asserting that in determining whether a claimant possesses the requisite locus standi to maintain an action recourse must be had to only the writ of summons and statement of claim. Counsel thereafter traversed through the contents of the writ of summons and the affidavit of facts of the first Respondent filed under the Undefended List Procedure and stated that it was clear thereform that the first Respondent copiously disclosed more than sufficient interest in the subject matter of the claims to invest it with the necessary locus standi to commence and maintain the action against the Appellant.
Counsel stated that the best that could have been made of the letter adduced by the Appellant as further evidence in this appeal, i.e. the notice of assignment its indebtedness by the first Respondent to the third Respondent, in the lower Court would have been to make part of the defence and it would not have formed part of the consideration by the lower Court of the locus standi of the first Respondent, but part of the matters for the defence to the claim, and that as such it cannot be a matter for locus standi in this appeal. Counsel stated that, by the way, the issue of the locus standi of the first Respondent to maintain the action in the lower Court has become an academic question in the light of the joinder of the third Respondent as a party in this appeal and that it is not the habit of the Courts to waste time and energy on the resolution of academic questions and he referred to the cases of Ekele Vs Iwodi (2014) 15 NWLR (Pt 1431) 557, Ikenya Vs PDP (2012) NWLR (Pt 1315) 493 and Dalek Vs OMPADEC (2007) 7 NWLR (Pt 1033) 402.
Counsel stated that the said notice of assignment is an agreement between the first and third Respondents and that the Appellant was neither a party to the agreement nor the beneficiary of the agreement and it cannot thus rely on its contents to impeach the proceedings taken before the lower Court. Counsel stated that the Appellant is not contesting that it is indebted to the first Respondent, and consequently to the third Respondent, and it is under an obligation to pay its debts and it cannot be allowed to rely on an agreement to which it is not a party to avoid its obligation and that the contention of the Appellant on the locus standi of the first Respondent has no basis in law.
Counsel stated further that the action in the lower Court was commenced on the 23rd of December, 2010 when application for the writ under the Undefended List was taken out and that this was before the assignment of the debt by the first Respondent to the third Respondent and that the jurisdiction of the lower Court cannot be affected by a document, a domestic arrangement between the first and third Respondent, that came into effect after the action was filed because a Court does not lose jurisdiction in the middle of litigation. Counsel stated that the only effect the notice of assignment can have is to make the third Respondent the inheritor of the case before the lower Court and of the benefits emanating from the proceedings, it cannot affect the jurisdiction of the lower Court to entertain the matter. Counsel urged the Court to resolve the fifth issue for determination in favour of the first and third Respondents.
Learned senior Counsel for the first and third Respondents concluded his arguments by praying the Court not to find any merits in the appeal and to dismiss same accordingly.
As noted above, the records show that Counsel to the Appellant filed a Reply brief of arguments to the brief of arguments of the first and third Respondents. The Reply brief of arguments spanned fourteen pages. Now, it is elementary that the function of a reply brief is to answer the arguments in a respondent’s brief which were not taken in the appellant’s brief and it should be limited to answering any new points arising from the respondent?s brief. Where a respondent’s brief merely responds to the points raised in the appellant’s brief and does not raise any new points, a reply brief is otiose as it is not a means for re-arguing the case of the appellant. Omnia (Nig) Ltd Vs Dyktrade Ltd (2007) 15 NWLR (Pt 1058) 576, Abdullahi Vs Military Administrator, Kaduna State (2009) 15 NWLR (Pt 1165) 417, Longe Vs First Bank of Nigeria Plc (2010) 6 NWLR (Pt 1189) 1. The reply brief of the Counsel to the Appellant in this appeal was an attempt to re-argue the case of the Appellant as the brief of arguments of the first to the third Respondents merely responded to the points canvassed by the Appellant in its brief of arguments and it did not raise any new points.
This Court will thus discountenance the Reply brief of arguments.
Now, the principles governing formulation of issues for determination and the adumbration of arguments in an appeal have been well set out and established by the Courts. It is settled law that an issue for determination in an appeal should not comprise of other issues; it should not be a composition of two different issues ?Iloabuchi Vs Ebigbo (2000) 8 NWLR (Pt 668) 197, Ehikhamwen Vs Iluobe (2002) 2 NWLR (Pt 750) 151, Unokan Enterprises Ltd Vs Omuvwie (2005) 1 NWLR (Pt 907) 293, Ikare Community Bank (Nig) Ltd Vs Ademuwagun (2005) 7 NWLR (Pt 924) 275. The first, second, fourth and sixth issues for determination formulated by Counsel to the Appellant in this appeal as well as the first issue for determination formulated by the Counsel to the first and third Respondents violated this principle and they consisted of multiple questions and are improperly formulated issues for determination.
It is also an established principle that issues for determination must arise from the judgment or decision appealed against and must be distilled from the grounds of appeal Shipcare Nigeria Limited, Owners of the ?M/T African Hyacinth? Vs The Owners of the ‘M/V Fortunato’ (2011) 7 NWLR (Pt 1246) 205, Ebute Vs Union Bank of Nigeria Plc (2012) 2 NWLR (Pt 1284) 254, Odusote Vs Odusote (2012) 3 NWLR (Pt 1288) 478, and Okechukwu Vs Independent National Electoral Commission (2014) 17 NWLR (Pt 1436) 255. The first part of the first issue for determination formulated by the Appellant and the arguments canvassed there under questioned the propriety of the lower Court placing and entertaining the claims of the first Respondent under the Undefended List Procedure. The records of appeal show that the lower Court placed the claims of the first Respondent under the Undefended List in the Ruling it delivered on the 26th of January, 2011 on the application for leave to issue the writ of summons under the Undefended List, and not in the Ruling delivered on the 8th of March, 2012. The lower Court stated in that Ruling that:
‘This application is for leave to issue a writ of summons against the defendants under the undefended list as per attached Exhibit A. ? I have gone through the affidavit and annexures marked as Exhibits and I am convinced that the Exhibit A is a claim that can be heard on the Undefended List.
The Appellant did not appeal against this Ruling and in none of the eight grounds of appeal contained in its further amended notice of appeal did it question or challenge the placing and the consideration of the claims of the first Respondent under the Undefended List. The Appellant did not contend in any of the grounds of appeal that the claims of the first Respondent were not a liquidated demand which should not have been considered under the Undefended List. The first part of the first issue for determination formulated by the Appellant and the arguments canvassed there under questioning the propriety of the lower Court placing and entertaining the claims of the first Respondent under the Undefended List Procedure did not arise from the decision of the lower Court appealed against and neither was it formulated from any of the grounds of appeal. It will thus not be countenanced in this appeal.
Additionally, it is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court V S Steel (Nig) Ltd Vs Government of Anambra State (2001) 8 NWLR (Pt 715) 454, Akinyanju Vs University of Ilorin (2005) 7 NWLR (Pt 923) 87 and Netufo Vs Omoolorun (2005) 12 NWLR (Pt 938) 1. A party is not allowed to maintain on appeal a different case from that pursued at the trial Court; he must be consistent in stating his case. Suberu Vs State (2010) 8 NWLR (Pt 1197) 586, Ologun Vs Fatayo (2013) 1 NWLR (Pt 1335) 303, Iliyasu Vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409. This point was succinctly made by the Supreme Court in the case of Idufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus:
It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”
The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same. Alamieyeseigha Vs Federal Republic of Nigeria (2006) 16 NWLR (Pt 1004) 1, Nidocco Ltd Vs Gbajabiamila (2013) 14 NWLR (Pt 1374) 350, Nigerian Bottling Company Plc Vs Ubani (2014) 4 NWLR (Pt 1398) 421, Society Bic SA Vs Charzin Industries Ltd (2014) 4 NWLR (Pt 1398) 497, Abdullahi Vs Bani (2014) 17 NWLR (Pt 1435) 1.
‘The Appellant, as the first defendant, filed a written address in support of its notice of intention to defend in the lower Court. Nowhere in the said address did the Appellant contend the propriety of the lower Court placing and entertaining the claims of the first Respondent under the Undefended List Procedure and neither did it contest that the lower Court could not entertain the claims of the first Respondent because of the pendency of Suit No PLD/J244/2009. There is nothing on the records suggesting that the Appellant sought for and obtained the leave of this Court to raise these issues in this appeal. It is correct that the Appellant tried to couch the issue of the power of the lower Court to entertain the action vis a vis the pendency of Suit No PLD/J244/2009 as an issue of jurisdiction in Ground Seven of the further amended notice of appeal to avoid the necessity for obtaining leave of Court. It is clear that it is not an issue of jurisdiction of the lower Court to entertain the action, but is at best one of abuse of Court process. It is settled law that it is the essence of a ground of appeal that determines its classification and not its designation or cognomen. Amuda Vs Adelodun (1997) 5 NWLR (Pt 506) 480 and First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt 1216) 247.
The records of appeal show that the Appellant constituted the issue of abuse of process for hearing on a motion on notice it filed before the lower Court on the 4th of April, 2011 and that the parties filed affidavit, counter affidavit and reply affidavit as well as written addresses on the motion, but that on the 30th of January, 2012, the Counsel to the Appellant voluntarily withdrew the motion and did not pursue the issue again before the lower Court. The Appellant effectively abandoned the issue in the lower Court and he cannot thus seek to raise it as a matter of right in this appeal. The Appellant cannot raise and contend the point of the propriety of the lower Court placing and entertaining the claims of the first Respondent under the Undefended List Procedure or the issue of whether or not the lower Court could entertain the claims of the first Respondent because of the pendency of Suit No PLD/J244/2009, constituted in Exhibit SFRA 1, in this appeal. The arguments of the Appellant thereon will be discountenanced.
Reading through the records of appeal, particularly the processes filed by the parties before the lower Court, the Ruling of the lower Court appealed against, the notice of appeal, as well as the arguments of the parties in their respective briefs of arguments, it is the view of this Court that there are two issues for determination in this appeal.
These are:
i. Whether, on the facts and circumstances of this case, the lower Court was correct when it entered part judgment in favour of the first Respondent and against the Appellant in the sum of N91,481,560.49 together with post judgment interest of 10% thereon until liquidation.
ii. Whether the first Respondent possessed the requisite locus standi to commence and maintain the action against the Appellant in the lower Court in view of the notice of assignment of the indebtedness of the Appellant by the first Respondent to the third Respondent.
This appeal will be resolved on these two issues for determination and all the relevant arguments of Counsel to the parties in their respective briefs of arguments will be considered there under. The issues will be considered seriatim.
In the Ruling appealed against, the lower Court deliberated on the claims of the first Respondent thus:
In this case, the 1st defendant is alleged to have taken a loan or overdraft facility which started with N30 Million, it was enhanced – to N55 Million, Another enhancement was approved to the tune of N80 Million. This was guaranteed by the 2nd defendant. I have perused the affidavits in support of the notice of intention to defend and there is no deposition denying the overdraft facility of N80,000,000.00, nor the demand letter – Exhibit 1. What is to be found in the affidavits are various allegations of irregular charges of interest built into the overdraft by the plaintiff. The defendants admitted the existence of the facility by Exhibit H but alleged some irregular charges which were contrary to Central Bank guidelines and loan agreement.
Meanwhile the plaintiff annexed relevant documents supporting the various applications for the overdraft and approvals wherein the terms and conditions were clearly stated. The defendant did not annex any document to back their challenge to the deductions. In any case, can the pending suit be evidence of repayment of the N80 Million overdraft which is capital without interest? Evidence of repayment is what the defendants are expected in law to prove and satisfy this Court upon. The defendants are not denying the overdraft facility as Exhibit H to the writ was not denied by the defendants. The plaintiff also formally made a demand of N91,481,560.49 via Exhibit 1 and this too the defendants did not deny.
From the processes before the Court the claim of N80 Million ‘is not disputed since it is the interest charges that the defendants alleged were fraudulently done and contrary to Central Bank guidelines. It is settled that a commercial bank is by statute and agreement or convention allowed to charge interest. The plaintiff is a commercial bank licensed and therefore it can charge interest. I agree with plaintiff’s counsel that the agreement allows for the charging of interest and none of the parties can renege on it. ‘
However, since the issue of what interest rate to charge along other charges are what the defendants are alleging that the plaintiff charged arbitrarily, it has raised a triable issue which would necessitate the transfer of the balance of the amount claimed for proof by the plaintiff. Meanwhile since there is no defence on the main amount of the overdraft, and demand as per Exhibit H, judgment has to be entered for the plaintiff in the said sum in Exhibit H which was not denied. Judgment is entered in the sum of N91,481,560.49, only.
Interest upon judgment is a statutory requirement as it is supported by Order 40 R 7 of the High Court Civil Procedure Rules of Plateau State 1987, this Court hereby awards 10% interest upon the judgment sum above from today until the judgment is totally and fully liquidated.
The balance of N62,449,853.60 ? which represents interest and other charges capitalized which the defendants have challenged is hereby transferred to the general cause list for hearing on the merit.
The complaints of the Appellant against these deliberations of the lower Court in this appeal are (i) that the lower Court was in error when it found that the Appellant admitted the sum of N91,481,560.49; (ii) that the judgment entered by the lower Court is a nullity because when the sum awarded as part judgment, i.e. N91,481,560.49, is added to the sum transferred to the general cause list for trial, i.e. N62,449,853.60, it comes to N153,931,414.09, and which is more than the sum of N153,929,414.06 and that as such the lower Court pronounced on more than claimed by the first Respondent; and (iii) that the lower Court was in error in entering part judgment in favour of the first Respondent without the first Respondent having first made an application, oral or written, for the part judgment and without the matter having been first transferred to the general cause list.
It was not in dispute between the parties in this case that the Appellant sought for and was granted overdraft facilities by the first Respondent at the different times totaling N80 Million for a tenure of ninety days with effect from 20th of June, 2008 and that it was agreed that the facility will attract interest at the rate of 21% per annum, documents in proof of these facts were attached as Exhibits A to F. It was not in dispute that the second Respondent gave a personal guarantee to repay the said overdraft facility and the personal guarantee was attached as Exhibit G. It was not in dispute that the Appellant and second Respondent failed to repay the overdraft facility plus interest as at when due and consequent to which the parties had meetings to discuss the indebtedness and that the Appellant wrote a letter dated 28th of January, 2009 acknowledging its indebtedness to the first Respondent and of the meeting held thereupon and it requested for a restructuring of the loan and for further facility; the letter was Exhibit H. It was not in dispute that by a letter dated the 12th of May, 2009, the first Respondent wrote to the Appellant intimating it of the immediate need for it to pay up the outstanding indebtedness which stood at N91,481,560.49, on or before the 20th of May, 2009, and failing which it will take necessary steps to recover the money; the letter was Exhibit I.
Exhibit I read thus:
REPAYMENT OF EXISTING EXPOSURE
We write further to the offer letter you accepted on the subject facility and our various discussions on the above.
As a follow up to this letter, we like to inform you that the total amount outstanding on your facility to the Bank as at May 12, 2009 is N91,481,560.49. This is either above our Statutory Single Obligor Limit (SSOL) and or the operation of the facility account is in breach of some terms and conditions contained in the referenced accepted offer letter.
Consequently, the Resident Central Bank Examiners posted to all Nigerian Banks, have identified all accounts within these categories and have demanded that we get the customers to immediately repay all such loans within ten days. It is on this premise that we demand that you kindly pay the sum N91,481,560.49 on or before 20th May, 2009. This is a final DEMAND for the immediate payment of the sum outstanding, earlier demanded in the letter referred to above.
Please note, we shall be willing to share pari passu our existing collateral with other financial institutions that is willing to avail you various facility to pay down on your exposure with us.
We trust that with your demonstrated repayment capacity and pedigree, you will pay down within this time frame. Unfortunately, for customers not in your category, who may not pay within this period, the bank has decided on alternative course of actions to compel such defaulting customers to repay all sums due to us unfailingly.
We thank you for your valued patronage and look forward to receiving the stated payment in earnest.
It is not in doubt that this letter was a business letter requiring a response from the Appellant. It was not dispute that the Appellant did not respond to this letter. It is trite law that where a party fails to respond to a business letter which by the nature of its contents requires a response or a refutal of some sort, the party will be deemed to have admitted the contents of the letter. Gwani Vs Ebule (1990) 5 NWLR (Pt 149) 201, Trade Bank Plc Vs Chami (2003) 13 NWLR (Pt 836) 158, Zenon Petrol & Gas Vs Idrissiya Ltd (2006) 8 NWLR (Pt 982) 221, Nagebu Co. (Nig) Ltd Vs Unity Bank Plc (2014) 7 NWLR (Pt 1405) 42, Bagobiri Vs Unity Bank Plc (2016) LPELR 41161(CA), Amber Resources Nigeria Ltd Vs Century Energy Services Ltd (2018) LPELR 43671(CA), Fam-Lab Nigeria Limited Vs Jahmarco Nigeria Limited (2018) LPELR 44730(CA). In I.O.M. Nwoye & Sons Company Ltd Vs Co-operative and Commerce Bank (Nig) Plc (1993) 8 NWLR (Pt 310) 210 the Court held that where a bank makes demands for settlement of debt by letters and the amount of the debt is contained in each letter and the debtor does not query the respective figures written in the letters as the overall debt due, the debtor will be deemed to have impliedly admitted the quoted figures as the amount of debt due.
In the affidavit in support of the notice of intention to show cause, the Appellant admitted in paragraph 4 (iii) that its liability to the first Respondent was N91,481,560.49 as at the date of the last letter sent to it by the first Respondent. The Appellant did not depose in any part of the affidavit that this figure did not represent the true state of its indebtedness to the first Respondent as at the date of the receipt of the letter. It is trite law that a denial in an affidavit must be precise, concise and exact and it must not give room for conjecture or speculation, otherwise it is in law and fact not a denial. Chairman, Economic and Financial Crimes Commission Vs Littlechild (2016) 3 NWLR (Pt 1498) 72, Jukok International Ltd Vs Diamond Bank Plc (2016) 6 NWLR (Pt 1507) 55. Further, it was not the case of the Appellant in the affidavit that it paid down any portion of the said sum of N91,481,560.49 after the receipt of Exhibit I. It is settled law that where the customer of a bank admits taking a loan facility, it has the duty and responsibility of proving that it had repaid the loan. Ishola Vs Societe Generale Bank (1997) SCNJ 23 and Saleh Vs Bank of the North Ltd (2006) 6 NWLR (Pt 976) 316.
It is correct that the affidavit of the Appellant contained depositions complaining about some unauthorized debits in its account, but a holistic reading of the affidavit shows clearly that the contest of the Appellant was not with the sum of N91,481,560.49 stated to be balance of its indebtedness to the first Respondent as at 12th of May, 2009, but with the ballooning of the indebtedness from the said N91,481,560.49 to N153,929,414.06 as at 30th of November, 2010 as stated in the statement of account, Exhibit J. In view of the state of the facts on the affidavits of the parties before the lower Court and of the law applicable to those facts, the inference drawn by the lower Court that the Appellant admitted the sum of N91,481,560.49, out of the sum claimed by the first Respondent cannot be faulted. The lower Court was thus not in error when it made the finding of fact that the Appellant admitted the sum of N91,481,560.49. The lower Court was also correct when it found that all the depositions on the affidavit of the Appellant on spurious and authorized debits made in its statement of account relate to the balance of the sum claimed by the first Respondent over and beyond the admitted sum of N91,481,560.49 and this it, rightly, transferred to the general cause list for trial.
Going to the second complaint of the Appellant against the part judgment entered by the lower Court, the law is that while a Court may in a proper case award less than claimed, the Court cannot and should not award more than the amount of a plaintiff?s claim ? SCOA (Motors) Onitsha Vs Abumchukwu (1973) All NLR 290, Ekpenyong Vs Nyong (1975) 2 SC (Reprint) 65, Kalio Vs Daniel-Kalio (1975) 2 SC (Reprint) 14, Ebosie Vs Phil-Ebosie (1976) 7 SC (Reprint) 72, Ogunyade Vs Oshunkeye (2007) All FWLR (Pt 389) 1175. The sum which the lower Court entered as part judgment was N91,481,560.49 and it is far less than the sum of N153,929,414.06 claimed by the first Respondent on the writ of summons. The fact that if the sum for which the lower Court entered judgment is added to the sum that it transferred to the general cause list, i.e. the sum of N62,449,853.60, the total will come to N153,931,414.09, and which is slightly more than the sum of N153,929,414.06 claimed is completely irrelevant to the validity of the part judgment entered by the lower Court which is for a sum lesser than the sum claimed. It only means that where the lower Court finds for the first Respondent at the end of the trial for the balance of the sum claimed, it can only award a sum that will not take the total judgment sum granted to the first Respondent beyond the sum of N153,929,414.06 claimed, and nothing more. The second complaint of the Appellant is baseless and totally misguided.
The third complaint of the Appellant under the first issue for determination is two-fold; that the lower Court should not have entered part judgment in favour of the first Respondent without the first Respondent making an application, oral or written, for the part judgment and without the matter having been first transferred to the general cause list. With respect to the Counsel to the Appellant, the first part of the complaint shows a lack of understanding of the Undefended List Procedure. It is a special procedure which is sui generis and has its own provisions within the Rules of Court. The procedure under the Undefended List starts with the plaintiff’s application for the issue of a writ of summons for a claim for liquidated money demand which application is to be accompanied by an affidavit setting forth the grounds upon which the claim is based and stating that in the belief of the deponent, there is no defence to the claim. The Court to which the application is made considers same ex parte and if satisfied that there are good grounds for believing that there is really no defence to the claim enters the suit for hearing in a list which is called the Undefended List and marks the writ of summons accordingly and enters therein a date for hearing.
The processes are thereafter served on the defendant who if he desires to defend the action, files a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit. The Court may, on the basis of the affidavit by the defendant, give the defendant leave to defend the action on such terms as it may think fit. It is not provided that before the Court decides to let in the defendant to defend the action, the plaintiff or his Counsel must first be heard.
In other words, under the Undefended List Procedure, the writ of summons, supported by the affidavit of facts, is itself an application for judgment and where a defendant files a notice of intention to defend, there is no need for any oral hearing before a trial Court determines whether or not to give leave to defence or to enter judgment in favour of the claimant, and all the trial Court is obligated to do is look at the facts on the affidavits of the parties and come to a conclusion thereon. Ekulo Farms Ltd Vs Union Bank of Nigeria Plc (2006) 4 SC (Pt II) 1, Abubakar Vs Modibo (2008) All FWLR (Pt 400) 751, Wema Securities and Finance Plc Vs Nigeria Agricultural Insurance Corp (2015) 6 NWLR (Pt 1484) 93, Ifeanyichukwu Trading Investment Ventures Limited Vs Onyesom Community Bank Ltd (2015) 17 NWLR (Pt 1487) 1, Nigerian Ports Authority Vs Aminu Ibrahim & Co (2018) LPELR 44464(SC). There is thus no need for any other application, oral or written, to be made or filed before a trial Court enters judgment under the Undefended List Procedure. The provision of Order 30 Rule 3 of the High Court of Plateau State (Civil Procedure) Rules does not apply to actions commenced under the Undefended List Procedure. Darlvis Investments Ltd Vs Hall Mark Bank Plc (2009) LPELR 8415(CA).
On second part of the complaint of the Appellant that the Court must first transfer the claims to the general cause list before it can enter part judgment for a sum admitted, the law is that, though it is desirable, it is not compulsory or necessary. Pas (Nigeria) Ltd Vs New Nigeria Salt Company Ltd (1990) 6 NWLR (Pt 159) 764. In African International Bank Ltd Vs Packoplast Nig Ltd (2003) 1 NWLR (Pt 802) 502, a claim for a liquidated sum under the undefended list procedure, wherein the defendant admitted owing part of the claim, Salami, JCA held that ?there should be no difficulty in the Court entering judgment for the sum admitted leaving the balance to be tried on the general cause list This statement was repeated in Asaba ile Mills Plc Vs Bona V. ile Ltd (2007) 1 NWLR (Pt 1015) 259 where this Court observed thus: ?The claim is for a liquidated sum owed by the defendant, and the defendant admits owing part of it. There should be no difficulty in the Court entering judgment for the sum admitted leaving the balance to be tried on the general cause list?.
In National Directorate of Employment (NDE) Vs Folasayo (2007) LPELR 8843(CA), Augie, JCA (as he then was) made the point clearer that “it is a general principle that it is either the whole suit is heard as an undefended list or the whole suit is transferred to the general cause list, but a Court can enter judgment for an admitted sum and transfer the disputed sum to the general cause list.”
In Darlvis Investments Ltd Vs Hall Mark Bank Plc (2009) LPELR 8415(CA), Saulawa JCA reiterated the point and gave the rationale for it thus:
‘Under the Undefended List Procedure and practice, reliefs being claimed by a plaintiff in a suit are usually wholly tried and judgment summarily entered thereupon, or transferred to the general cause list for the plaintiff to prove his claim. However, as an exception to the general rule, where a defendant admits to a part of the plaintiff?s claim, as in the instant case, the trial Court has unfettered discretion to enter judgment regarding the sum or amount so admitted, thereby transferring the rest of the disputed claim to the general cause for trial. This proposition is predicated on the well settled fundamental principle that no fact need be proved in any civil proceedings which a party or parties thereto or the agents thereof agree to admit at the hearing, or which prior to the hearing, they agree to admit in writing
It is settled law that once a debt is admitted, judgment should be entered for the sum admitted irrespective of other considerations that may crop up. Nneji Vs Chukwu (1988) 3 NWLR (Pt 81) 184, Asaba ile Mills Ltd Vs Bona V. ile Ltd (2007) 1 NWLR (Pt 1015) 259, Ogunsola Vs Adeyemi (2008) 14 WRN 96. No further proceeding or evidence to prove the debt is required. Dunlop Nigeria Plc Vs Gaslink Nigeria Ltd (2018) LPELR 43642(CA), Alhaji Hassan Bello & Sons Ltd Vs Zenith Bank Plc (2018) LPELR 43792(CA). This is because an admission of debt is a solemn declaration of indebtedness of the defendant to the plaintiff in the sum admitted. Akaninwo Vs Nsirim (2008) 9 NWLR (Pt 1093) 439. The third complaint of the Appellant under the first issue for determination is thus also not well founded. All in all the first issue for determination is resolved against the Appellant.
This takes us to the second issue for determination in this appeal; the locus standi of the first Respondent to commence and maintain the action in the lower Court in view of the notice of assignment of the debt to the third Respondent.
Now, locus standi in general parlance means a recognized position or standing. In law, it means a place of standing in Court or right to appear in Court. Locus standi or standing to sue is defined as the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In other words, locus standi is the right of appearance in a Court of justice or before a legislative body on a given question ?Dada Vs Ogunsanya (1992) 3 NWLR (Pt 232) 754, United Bank of Africa Plc Vs BTL Industries Ltd (2004) 18 NWLR (Pt 904) 180, Adetona Vs Zenith International Bank Plc (2011) 18 NWLR (Pt 1279) 627, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294.
The Courts have stated that a party seeking to establish locus standi must show (a) a legal or justifiable right; (b) sufficient or special interest adversely affected; and (c) a justifiable cause of action. Attorney General, Kaduna State Vs Hassan (1985) 2 NWLR (Pt 8) 483, Taiwo Vs Adegboro (2011) 11 NWLR (Pt 1259) 562, Adekunle Vs Adelugba (2011) 16 NWLR (Pt 1272) 154, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294. In other words, for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in a Court of law. In other words, there must be a nexus between the party and the disclosed cause of action concerning his rights or obligations. Senator Abraham Adesanya Vs The President of the Federal Republic of Nigeria (1981) 2 NCLR 358, Imade Vs Military Administrator, Edo State (2001) 6 NWLR (Pt 709) 478, Taiwo Vs Adegboro supra, Adetona Vs Zenith International Bank Plc supra.
It has been settled by a long line of cases that in determining the locus standi of a party, a trial Court must have regard to, and only to, the originating processes by which the action was commenced or the claim was made by that party, that is the writ of summons and the statement of claim or counterclaim, in an action commenced by a writ of summons, or originating summons or originating motion ? Global Trans Oceanico SA Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426, United Bank of Africa Plc Vs BTL Industries Ltd supra, Amah Vs Nwankwo (2007) 12 NWLR (Pt 1049) 552, Anozia Vs Attorney General, Lagos State (2010) 15 NWLR (Pt 1216) 207, JFS Investment Ltd Vs Brawal Line Ltd (2010) 18 NWLR (Pt 1225) 495, Wilson Vs Okeke (2011) 3 NWLR (Pt 1235) 456, Taiwo Vs Adegboro supra, Adekunle Vs Adelugba supra, Adetona Vs Zenith International Bank Plc supra, Charles Vs Governor of Ondo State supra. Where documents are pleaded in the statement of claim and are frontloaded as documents to be relied upon at trial, as part of the originating processes, then such documents might also be looked at, as suggested by the Supreme Court in JFS Investment Ltd Vs Brawal Line Ltd supra. A trial Court cannot go outside the originating processes in determining the issue of locus standi of a claimant ? Ntung Vs Longkwang (2018) LPELR 45624(CA), Barbus & Co (Nig) Ltd Vs Okafor-Udeji (2018) LPELR 44501(SC). InEze Vs Peoples Democratic Party (2018) LPELR 44907(SC), the Supreme Court reiterated this position recently when it stated:
‘Again, where a plaintiff?s locus standi to maintain an action is challenged, it is the plaintiff’s claim that determines the objection. If, however, the action is commenced by an originating summons, it is the averments in the affidavit in support alone that is examined in determining whether or not the Court is competent to proceed.’
In the instant case, it is not in contest that the contents of the affidavit of facts deposed in support of the writ of summons issued under the Undefended List contained all the necessary indices showing the locus standi of the first Respondent to commence and maintain the action against the Appellant in the lower Court. What the Appellant seeks to do in the appeal is to retrospectively nullify the locus standi of the first Respondent, which was visibly and competently displayed on the face of the originating processes in the matter, by relying on a notice of assignment of debt that was not pleaded, referred to and/or presented before the lower Court and which it said it was not aware of until after the hearing in the lower Court, and which was only adduced as further evidence in this appeal. This is asking for a legal impossibility.
It is elementary that an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision. Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56, Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31. Thus, the task of this Court in this appeal is to see whether on the facts placed before it the lower Court arrived at a correct decision. Where facts are discovered after the hearing and determination of a matter by a trial Court, it is the view of this Court that while such facts may form the basis for contesting the propriety of the judgment given in the matter on the ground of misrepresentation, fraud or mistake in a fresh Court action, they cannot be a ground for challenging the correctness of the judgment on appeal. In Odeleye Vs Orelusi (1991) 7 NWLR 247 at 256F to 257F, the Court made the point thus:
The trial Court usually comes to a decision on the totality of evidence led on both sides and when an appeal is brought before an Appeal Court, the Court of Appeal is always to determine whether the trial Court came to the right decision on the evidence placed before the Lower Court and whether it had applied the law on the evidence correctly. It will not be normally correct for the Appeal Court to determine an appeal on the basis of the evidence which was not placed before the trial Court and which cannot be said to have been considered. In other words, it would be absurd to determine an appeal on evidence partly adduced at the trial Court and other evidence adduced at the Court of Appeal – that would not be a just disposal of the case.
The first Respondent disclosed sufficient facts to ground its locus standi to commence and maintain the action against the Appellant on the originating processes in this matter. The action was thus properly before the lower Court.
Going further, by the provisions of Order 23 of the High Court of Plateau State (Civil Procedure) Rules 1987, an action under the Undefended List is commenced by the filing of an application for the issuance and placement of a writ of summons under the Undefended List, and not by the issuance of the writ of summons as wrongly suggested by Counsel to the Appellant. The application for the issuance and placement of a writ of summons under the Undefended List was made by the first Respondent on the 22nd of December, 2010 and filed on the 23rd of December, 2010. By the notice of assignment of the debt owed by the Appellant by the first Respondent to the third Respondent, the assignment became effective on the 1st of January, 2011. In other words, the action in the lower Court was commenced before the assignment of the debt took place.
The sale and purchase of debts, referred to as ?eligible bank assets?, by the Asset Management Corporation of Nigeria, the third Respondent, from Nigerian Banks, such as the first Respondent, is provided for in Sections 24 to 52 of the Asset Management Corporation of Nigeria Act of 2010 (as amended). Section 34 deals with the effect of acquisition of eligible bank asset by the third Respondent and it reads:
1. Subject to the provisions of the Land Use Act and Section 36 of this Act, where the Corporation acquires an eligible bank asset, such eligible bank asset shall become vested in the Corporation and the Corporation shall exercise all the rights and powers and subject to the provisions of this Act, become subject to all of the obligations of the eligible financial institution from which the eligible bank asset was acquired in relation to the bank asset, the debtor concerned and any guarantor, surety or receiver, liquidator, examiner or any other person concerned and the eligible financial institution shall cease to have those rights and obligations.
2. Subject to the provisions of the Land Use Act and Section 36 of this Act, the vesting of an eligible bank asset in the Corporation and the assignment of every relevant contract relating to an eligible bank asset in the Corporation upon the acquisition of an eligible bank asset by the Corporation as contemplated in Subsection (1) of this section shall take effect and be effective notwithstanding any
a. contractual restriction on the acquisition, assignment or transfer of the bank asset or any part thereof or any contract relating thereto; or
b. requirement for a consent, notification, registration, authorization or licence (by whatever name and however described).
3. Without prejudice to the provisions ofSubsections (1) and (2) of this section, the Corporation may direct an eligible financial institution to hold an eligible bank asset or relevant contract deemed vested in, or assigned to the Corporation by the provisions of Subsection (1) of this section and exercise any such right or power in relation thereto; and when so directed, the eligible financial institution shall hold the eligible bank asset and exercise such rights and powers in the relevant contract at the direction of the Corporation for the sole benefit of the Corporation and shall, in relation thereto be subject to the duties, obligations and liabilities as nearly as possible corresponding to those of a trustee in relation to the eligible bank assets and any relevant contracts deemed assigned by the provisions of this Subsection (1) of this section.
4. Any property, money or other pecuniary benefit received by an eligible financial institution in the course of holding any eligible bank asset acquired by the Corporation or any relevant contract thereto or in exercising any right pursuant to Subsection (3) of this section shall be held as bare trustee, in trust for and for the sole benefit of the Corporation and turn over to the Corporation and shall not be taken to be an asset of the eligible financial institution, or accounted for such in the books of the eligible financial institution.
What do these provisions mean? They mean that an agreement for sale of a debt of a customer is strictly between the Bank who is the creditor, as the seller, and Asset Management Corporation of Nigeria, as the purchaser, without any input or participation from the customer, the debtor. They mean that upon the sale of the debt, all the rights and powers pertaining or attached thereto as well as the obligations thereon become vested in the Corporation with or without notification of the sale to the debtor. They mean that the vesting of the rights and powers pertaining to a debt in the Corporation upon purchase is without prejudice to the Corporation allowing the Bank to continue to exercise some of those rights and powers on its behalf and as its trustee and that all income or monies derived by the Bank from such exercise of the rights and powers on behalf of the Corporation shall be for the benefit of the Corporation. Prime Marketing Associates Ltd Vs Keystone Bank Ltd (2016) LPELR 42262(CA).
In other words, though the rights and powers pertaining to a purchased debt vests in the Corporation immediately upon purchase, including the power to sue for the debt, it does not preclude the Bank from exercising or continuing to exercise such powers on behalf of the Corporation. Where the Bank exercises or continues to exercise the powers on behalf of the Corporation, the question of whether the Bank had the permission of the Corporation to do so is a matter strictly and purely between the Bank and the Corporation, and it is not the business of the debtor or of any third party to the agreement. This is the essence of the doctrine of privity of contract which postulates that, in law, a contract is always between the contracting parties who must stand or fall, benefit or lose from the provisions of their contract and the contract cannot bind third parties nor can third parties take or accept liabilities under it, nor benefit there-under. Ikpeazu Vs African Continental Bank Ltd (1965) NMLR 374, Ogundare Vs Ogunlowo (1997) 6 NWLR (Pt 509) 1, Makwe Vs Nwukor (2001) 14 NWLR (Pt 733) 356, Basinco Motors Ltd Vs Woermann-Line (2009) 13 NWLR (Pt 1157) 149, Rebold Industries Ltd Vs Magreola (2015) LPELR 24612(SC).
In the instant case therefore, the fact that the first Respondent assigned the debt due to it from the Appellant to the third Respondent with effect from the 1st January 2011 did not preclude it from continuing the case commenced on the 23rd of December, 2010, or in fact, from commencing a fresh case, against the Appellant for the outstanding debt. The question of whether the first Respondent had the permission of the third Respondent to do so is not the business of the Appellant, but that of the third Respondent and only the third Respondent can complain and question action of the Bank, and not the Appellant. The third Respondent made no complaints against the prosecution of the case by the first Respondent. The complaint of the Appellant is baseless and totally misconceived. The second issue for determination is thus also resolved against the Appellant.
The Court must say that this case leaves a slightly bad taste in the mouth. The second Respondent, Senator Jacob Tilley-Gyado, is supposedly a respectable and honorable man and a leader of thought in his Community. He approached the first Respondent through the instrumentality of the Appellant for an overdraft facility of N80 Million to finance a contract and he personally signed the requests for the overdraft, Exhibits A, C and E. The first Respondent granted the requests on terms and conditions agreed to and personally accepted by the second Respondent on behalf of the Appellant by signing Exhibits B, D and F, and the money, N80 Million belonging to other customers of the first Respondent, was disbursed to him. The facility was for a period of ninety days with effect from June, 2008 and it was personally guaranteed and collateralized by the second Respondent; Exhibit G was the personal guarantee. The second Respondent signed the letter addressed by the Appellant to the first Respondent wherein the Appellant acknowledged that it was indebted to the first Respondent on the overdraft facility, Exhibit H. The second Respondent thus had personal knowledge of the overdraft facility, of the terms and conditions of the facility and of the fact that the Appellant is yet to repay the facility.
One of the agreed terms of the facility was that the payments from the contract to be executed with the funds would be domiciled in the account with the first Respondent to liquidate the facility and interests due thereon. However, as admitted by the Appellant in a paragraph of the pleadings it filed in Suit No PLD/J244/2009, when payments on the contract were made, they did a dishonorable and irresponsible thing; they diverted contract payments in the sum of N78,866,044.78 from the account with the first Respondent, in clear breach of their undertaking and agreement. The overdraft facility has been due for repayment for over ten years now and the Appellant and second Respondent have not stated anywhere in the processes filed in this matter that they have paid up or taken steps to pay up the facility, not even the principal sum of N80 Million collected. Rather they have engaged in going from Court to Court to prevent the first Respondent, and now the third Respondent, from enforcing the repayment of the facility. This is definitely not right and there is no credibility, honor or respect in such actions.
Credibility, honor and respect lie in a man standing up and staying committed to his obligations and undertakings and finding ways of meeting them, even in difficult times. It is common knowledge that Intercontinental Bank Plc, the initial Bank that entered into the transaction with the second Respondent, suffered a distress that led to its take-over and decimation, and to some innocent investors in the Bank losing their money. Meanwhile, customers/debtors like the second Respondent and the Appellant, who contributed to the distress of the Bank, are strutting around the Court rooms with no intention of repaying their debts and seeking to use the processes of Court to perpetuate their impunities. Any society that permits and condones such actions cannot flourish and its citizens will be impoverished by persons they look up to and to whom they have ceded the responsibility of improving their lot. Ways and means must be developed to curb such behaviors and actions.
In conclusion, this Court finds no merit in this appeal and it hereby dismisses same. The decision contained in the Ruling of the High Court of Plateau State delivered by Honorable Justice Y. B. Nimpar (as he then was) in Suit No PLD/J/599/2010 on the 8th of March, 2012 is affirmed. The case file is remitted to the Chief Judge of Plateau State for assignment to a Judge for the conduct of trial on the disputed sum transferred to the General Cause List by the lower Court. The first and third Respondents are awarded the costs of this appeal assessed at N100,000.00. These shall be the orders of the Court.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother HABEEB A. O. ABIRU, JCA. and I agree with the reasoning contained therein and the conclusion arrived thereat.
The Two issues considered in this appeal has been sufficiently resolved by my learned brother in such a way that I am left with nothing to add. Doing otherwise will put me in the arena of repetition.
For those reasons contained in the lead Judgment which I adopt as mine, this appeal shall be and it is hereby dismissed by me for lack of merit.
BOLOUKUROMO MOSES UGO, J.C.A.: I am of the same opinion; I also dismiss the appeal with costs as ordered in the leading judgment.
Appearances:
Professor A. S. Shaakar with him, J. E OkpeFor Appellant(s)
Solomon Umoh, SAN with him, E. B. Ede, E. O Oyadiji, Yetunde Nze and S. E. Ekara for the 1st and 3rd Respondents.
L. E. Anyia with him, Ifeoma Okeke and N. N. Bai for the 2nd RespondentFor Respondent(s)
Appearances
Professor A. S. Shaakar with him, J. E OkpeFor Appellant
AND
Solomon Umoh, SAN with him, E. B. Ede, E. O Oyadiji, Yetunde Nze and S. E. Ekara for the 1st and 3rd Respondents.
L. E. Anyia with him, Ifeoma Okeke and N. N. Bai for the 2nd RespondentFor Respondent
