ALFRED AJAO & ORS v. UNILORIN MICROFINANCE BANK LIMITED
(2018)LCN/12048(CA)
In The Court of Appeal of Nigeria
On Monday, the 27th day of August, 2018
CA/IL/20/18
RATIO
ACTION: TO CLAIM INTEREST IN COURT
“Where interest is claimed, it would be difficult for the respondent to succeed in respect of the interest claimed, in this case where the appellants have not conceded to the claim and have made out that they have triable issues in defence. See, NKWO MARKET COMMUNITY BANK (NIG) LTD VS. OBI (2010) LPELR 2051 (SC) P. 23, PARAS. B – D. The appellants also made allegations of fraudulent transfer of funds into the account of the 2nd appellant which also needs to be settled through full trial. There are instances where the Court would grant the defendant leave to defend an action under the undefended list procedure, some of which are:
(a) Where the defendant raises substantial questions of fact or law which ought to be tried, or
(b) Where the defendant alleges misrepresentation or fraud by the plaintiff.
(c) Where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on accompanying affidavit.
Where fraud is alleged, full trial would clear the air. See, OGBONNA VS. UKAEGBU (2005) (supra), U.N.N. VS. ORAZULIKE TRADING CO. (1989) (supra), BEN NWANKWO VS. KAY – KAY CONSTRUCTION LIMITED (2014) LPELR 24336 (CA) and DENTON-WEST VS. MUOMA (2010) 2 NWLR (PT. 1177) 19 at 45 – 46. I hold that the appellants have disclosed triable issues, which will necessitate the hearing of the action under the general cause list. The appellants’ issue one is resolved in their favour.” PER CHIDI NWAOMA UWA, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. ALFRED AJAO
2. AB-FACTOR GLOBAL CONCEPT LIMITED
3. DR. OLUSOJI O. ADEBISI
4. MRS. TITILADE ITIOLA
5. ODEBUNMI EZEKIEL OLUYEMI
6. DR. OMOLARA O. OLUWANYI Appellant(s)
AND
UNILORIN MICROFINANCE BANK LTD Respondent(s)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment):
The appeal is against the judgment of the High Court of Kwara State, granting the reliefs sought by the Respondent as claimant under the undefended list procedure, delivered on the 14th day of December, 2017. The suit instituted under the Kwara State High Court (Civil Procedure) Rules 2005, sought the following reliefs:
(1) An order of this honourable Court mandating the defendants to pay to the claimant the sum of N4,751,464,78 (Four Million Seven Hundred and Fifty One Thousand Four Hundred and Sixty Four, Seventy Eight Kobo) only being the outstanding debt of the Defendants to the claimant.
(2) An order of this honourable Court directing the Defendants to pay 10% (Ten Percent) annually of the sum of N4,751,464.78 (Four Million Seven Hundred and Fifty One Thousand Four Hundred and Sixty Four Naira Seventy Eight Kobo) or whatever is the judgment sum from the date of judgment of this matter till the final liquidation sum.
(3) And for order(s) as the honourable Court may deem fit to make in this case.
The background facts are that the Respondent from her affidavit evidence granted the sum of N8,000,000.00 (Eight Million Naira) in favour of the 1st and 2nd defendants (now appellants) in two instalments (i.e. 18th February and 2nd April, 2015) to aid the supply of Fire Fighting Hilux (FIRST RESPONDER) to University of Ilorin. On 19th February, 2016, the 1st and 2nd Defendants applied again for another loan to refinance the contract and same was granted in the sum of N6,400.000.00K (Six Million, Four Hundred Thousand Naira Only). The appellants made out that both principal sums were eventually repaid by the 1st and 2nd appellants instalmentally. It was alleged that all the transactions through which the loan was obtained and the repayments were done through the 2nd Defendant/Appellant’s account domiciled with the claimant.
Further, that the respondent made an entry of N15,800.000.00K to the 2nd appellant’s account, it was alleged that the 2nd appellant did not apply nor receive the said sum from the respondent. Also, that the respondent did not mention in her claim that the 2nd appellant at any time applied for such amount of money.
The appellant alleged that there are a series of contentions as to whether the amount claimed by the respondent comprised of both the principal and the interest, as evidenced in the various correspondences exchanged between the 2nd Appellant and the Respondent prior to the institution of the action by the respondent at the lower Court. It was made out that the evidence adduced by the respondent are grossly not sufficient for the Court to have come to the conclusion that the 3rd – 6th appellants guaranteed the two loans, as the loans were taken at different times and the guarantors that guaranteed the first loan were not the same persons that guaranteed the second loan. The appellants were of the view that the learned trial judge did not examine the propriety or otherwise of granting the reliefs under the undefended list procedure when it was apparent that the reliefs sought were not for a liquidated sum. The appellants were aggrieved by the decision of the trial Court, thus this appeal.
The appellants identified two (2) issues for the determination of the appeal thus:
(i) Whether having regards to the facts and circumstances of this case, the trial Court was right in granting the reliefs of the respondent under the Undefended List Procedure when the money claimed by the respondent was unliquidated and when there are still serious contentions between the 1st and 2nd Appellants and the respondent as to the amount owed (Grounds 1,2,6,7,8 and 9 of the grounds of appeal).
(ii) Whether the trial Court was right to have held the 3rd to 6th appellants liable by holding that the two loans cannot be separated when it comes to the liability of the defendants in view of the various exhibits attached (i.e. Exhibits 1B, 1C, 1D, 2 (Grounds 3,4 and 5 of the grounds of appeal).?
The respondent on her part distilled the following two (2) issues for the determination of the appeal:
(1) Whether or not the trial Court was right to have heard and determined the matter under the undefended list procedure considering the evidence placed before it particularly Exhibit 11.
(2) Whether or not the trial Court was right to have granted all the respondent?s claims against all the appellants jointly and severally by virtue of evidence placed before it.?
In arguing the Appeal, the learned counsel Y.A. Dikko, appearing for the appellants adopted and relied on his brief of argument filed on 26/3/18 but, deemed filed on 30/5/18 and his reply brief filed on 7/5/18 but, deemed filed on 30/5/18, as his argument in urging us to allow the appeal. In arguing his first issue, it was submitted that the trial Court was wrong to have granted the reliefs sought by the respondent under the undefended list procedure. It was argued that the suit ought not to have been accommodated under the undefended list procedure, reference was made to paragraph 39 of the affidavit in support of the writ, Exhibits 11 and 12 which show that there is a dispute as to whether the principal sum has been paid or not and whether the claim is for both the principal loan and interest.
Also, the fact that the respondent’s claim cannot stand under the undefended list procedure. See,A.S.U.P., FEDERAL POLY., OFFA VS. U.B.A. PLC (2014) (PT. 748) 888 at 915 PARAGRAPHS D – H. It was submitted that the trial Court’s reliance on Exhibits 8 and 11 as implied admissions (the letters of 1st and 2nd Appellants) as well as the 2nd Appellant’s Solicitor’s Letter, Exhibit J.O.B. 1, pages 65 and 66 of the printed records of appeal where the latter pleaded to be allowed to pay the sum of N1,000,000.00 (One Million Naira) out of the alleged N4,751,464.78 (Four Million, Seven Hundred and Fifty One Thousand, Four Hundred and Sixty Four Thousand, Seventy Eight Kobo) which the respondent made out included both the principal loan and interest was improper.
In alternative argument, without conceding that there was an admission by the 1st and 2nd appellants, it was submitted that an admission like a confessional statement binds the maker of the said admission and can not bind a co – accused. See, ADUSEI VS. ADEBAYO (2012) LPELR 7844 at PAGE 17 PARAS. A – C. It was argued that the trial Court ought not to have held that 3rd – 6th Appellants liable for what they did not admit and that the appellants were entitled to their defence. It was also argued that the Court ought to have been satisfied that the claimant had established a prima facie case against the defendant before granting the claim of a defendant under the undefended list procedure. See, CRPDIC LTD. VS. OGBONA (2001) FWLR (PT. 54) 353 at 368 PARAGRAPH G, Reference was made to Order 32 Rule 1, Kwara State High Court (Civil Procedure) Rules, 2005. It was stressed that the procedure under the Rules requires that it be deposed in the affidavit in support of the writ that in her belief there is no defence to the action.
It was argued that this condition precedent was not fulfilled by the respondent. It was also argued that the respondent’s evidence did not support the reliefs sought therefore, the matter ought to have been transferred to the general cause list for full trial. See, G.T. BANK PLC VS. EKEMEZIE (2013) ALL FWLR (677) 697 at 712.
It was the contention of the learned counsel to the appellants that the respondent did not depose any further evidence to the effect that the 1st and 2nd Appellants obtained a second loan and how the respondent arrived at the figure of N15,800,000.00 injected into the account ledger, (Exhibit 11 was not substantiated.) It was argued that for this reason alone the learned trial judge ought to have transferred the matter to the general cause list. It was also argued that the allegation of fraud by the Appellants in their affidavit in support of the notice of intention to defend constitutes a triable issue; therefore, the case was unfit for trial under the undefended list procedure. See, A.S.U. FEDERAL POLY, OFFA VS. U.B.A. PLC (2014) (PT. 748) 888 at 917 PARAGRAPHS E – G. For what is a liquidated sum, reference was made to the cases of, AKPAN VS. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD. (2013) 12 NWLR (PT. 1368) 377 at 400, PARAS. D – E.
It was submitted that following Exhibit 11, the solicitors to the Appellants on 31st August, 2017, (page 65 of the printed records) wrote to the respondent denying owing the principal sum but, admitted the interest and requested that the respondent should ascertain the actual amount owed by the 1st and 2nd Appellants which was not done by the respondent. Further, that the Respondent ought to have placed before the Court the necessary documents to support its claim since the 1st and 2nd Appellants admitted indebtedness to the respondent only to the extent that the money owed is only the interest and did not cover the principal sum. It was alleged that from the various depositions and Exhibits tendered, there is serious disagreement between the respondent and the 1st and 2nd Appellants when the trial Court entered the claim as liquidated.
It was argued that the respondent from her affidavit evidence failed to put before the Court the amount that has not been paid as the principal sum and the total accrued interest but, only denied the payment of the whole principal sum and alleged that the sum of N4,751,474.78K covers both the principal and the interest.
Meanwhile, the appellants contended that there was no time that they obtained a loan of N15,800,000.00 as could be seen from the statement of account, Exhibit ‘5’, in paragraphs 9 and 10 of their affidavit, page 61 of the printed records of appeal. The deposition of the Respondent in paragraphs 31 and 33, pages 6 and 7 of the printed records was to the effect that the 1st and 2nd Appellants applied and were granted the sum of N6,400,000.00K (Six Million, Four Hundred Thousand Naira) to refinance the contract, later fraudulently injected the sum of N15,800,000.00 into the account of the 2nd Appellant, Exhibit ‘5’, page 39 of the records. It was submitted that the injection of the sum of N15,800,000.00 into the account of the 2nd Appellant on 18th February, 2016 explained how the respondent came about the purported sum of N4,751,474.78K (the principal and the interest sum) which the respondent claimed before the trial Court.
It was the contention of the learned counsel that the facts alleged by the respondent are such that entitle the 1st and 2nd Appellants to cross examine the respondent’s witnesses on the depositions in the affidavit and accompanying exhibits, such as Exhibit 11. See, OGBONNA VS. UKAEGBU (2005) 17 NWLR (PT. 954) 432 at 445 and U.N.N. VS. ORAZULUIKE TRADING CO. LTD. (1989) 5 NWLR (PT. 119) 9 and AKPAN VS. AKWA IBOM PROPERTY & INVESTMENT COMPANY LTD. (supra) at 396, PARAS. C – E. Also, DENTON-WEST VS. MUOMA (2010) 2 NWLR (PT. 1177) 19 at 45 – 46, PARAS. E – C and HAIDO VS. USMAN (2004) 3 NWLR (PT. 859) 65 at 79 – 80, PARAS. H – C. It was concluded that the suit ought not to have been heard under the undefended list procedure since there are contentious facts and discrepancies as to what was claimed.
In response, the learned counsel to the respondent I.F. Yusuf, relied on his brief of argument filed on 26/4/18 but, deemed filed on 30/5/18, as his argument in the appeal. In response to the Appellants? issue one, it was submitted that in considering whether the suit was in line with the provisions of Order 23 Rule 1 of the Kwara State High Court (Civil Procedure Rules) 2005, one would examine the writ of summons filed by the respondent at the trial Court which shows that the respondent’s claim was to recover debt of a liquidated sum of N4,751,464.78 (Four Million, Seven Hundred and Fifty One Thousand, Four Hundred and Sixty Four Naira, Seventy Eight Kobo), pages 2 of the printed records of appeal and paragraphs 37,38,39 & 40 of the Respondent’s affidavit in support of her claim. It was submitted that Exhibits 11 and 12 (pages 48 and 49 of the records) show that the appellants agreed that they owe the said sum above and pleaded for a waiver of the money to N1,000,000.00 (One Million Naira). It was submitted that Exhibit ‘5’ did not show that only the principal sum was paid by the appellants. Further, that the admission in Exhibit ’11’ did not need any further proof. See, JITTE VS. OKPULOR (2016) ALL FWLR (PT. 820) 1371.
It was stressed that there is no dispute as to the amount owed. It was contended that from Exhibit ‘5’ and the entries made on 16/6/15 and 18/5/16, these showed that the amount paid by the appellants covered the principal and interest sum. Also, that Exhibit ‘3’ showed that 7% interest rate payable was a term of the loan contract, therefore a claim for interest under the undefended list procedure is in order, reference was made to the contents of Exhibit ‘9’, pages 31 and 44 respectively. See, ASCOT FLOW TIMES LTD VS. IZU (2015) 14 NWLR (PT. 1478) at PAGE 146, PARAGRAPHS D & E.
On the allegation of fraud, it was submitted that a mere allegation of fraud cannot be used as a ground of transfer of a matter from undefended list procedure to the general cause list. See, JOHN HOLT & CO. (LIVERPOOL) LTD. VS. HENRY FAJEMIROKUN (1961) ALL NLR 492 and OJIBAH VS. OJIBAH (1991) 5 NWLR (PT. 191) 276.
It was concluded on this issue that the 1st and 2nd appellants as well as their guarantors are caught up by estoppel by conduct as provided under Section 169 of the Evidence Act.
The appellants’ reply brief in respect of the appellants’ first issue is a re-argument.
In resolution of the appellants’ issue one, it is apt to examine when the undefended list procedure is appropriate for a trial. It is a special procedure for a quick trial for the recovery of debts or a liquidated sum. In such a case, the ordinary hearing is rendered unnecessary due in the main, to the absence of an issue to be tried or the quantum of the plaintiff’s claim disputed that would necessitate such a hearing. See, UNITED BANK FOR AFRICA PLC & ANOR VS. ALHAJI BABANGIDA JARGABA (2007) 11 NWLR (PT. 1045) P. 247; (2007) 5 SC. P. 1; 2 FWLR (PT. 413) P. 1399, AGWUNEME VS. EZE (1990) 3 NWLR (PT. 137).
The procedure is to ensure quick disposal of certain categories of cases, such as involving debts or a liquidated sum, see, CO-OPERATIVE and COMMERCE BANK (NIGERIA) PLC VS. SAMED INVESTMENT COMPANY LIMITED (2000) 4 NWLR (PT. 651) 19, BANK OF THE NORTH VS. INTRA BANK SA (1969) 1 ALL NLR 91 and OLUBUSOLA VS. STANDARD BANK (1975) 1 ALL NLR (PT. 1) 125. On the other hand, the procedure is not designed to shut out a defendant who can show in his affidavit in support of intention to defend that there is, a triable issue. See, NATEX (NIGERIA) LIMITED VS. FRANC TOOLS CO. LTD (1997) 4 NWLR (PT. 501) 603.
Therefore, the affidavit in support of the notice of intention to defend must of necessity, disclose facts which raise some doubt on the case of the plaintiff, facts on the face of the affidavit must disclose a reasonable defence. For instance, the amount due which could only be determined by settling accounts. See, BENDEL CONSTRUCTION CO. LTD VS. ANGLOCAN DEVELOPMENT CO. (NIG) LTD (1972) 1 ALL NLR 153 and JOHN HOLT and CO. (LIVERPOOL) LTD VS. FAJEMIROKUN (1961) ALL NLR 492. Order 23 Rule (1) of the Kwara State Civil Procedure Rules has made provisions for the undefended list procedure in the state. The learned trial judge relied on Exhibits 11, 8 and J.O.B. 1 (pages 65 and 66 of the records) as the appellants’ admission of the amount claimed by the respondent.
On the part of the Appellants, what was owed was the actual accrued interest of the loan granted to the 1st and 2nd Appellants by the respondent as reflected in Exhibit ’11’. Whereas from Exhibit ’12’, (the response of the respondent to the Appellants’ Exhibit ’11’) showed that the outstanding balance claimed covers the principal and interest sum of the said loan as the amount previously paid formed part of the principal and interest sum. The bank disagreed that the outstanding sum was meant for the interest alone. In Exhibit J.O.B. 1, the Appellants refuted the assertion that the outstanding sum covered both principal and interest sum and requested the respondent to reconcile their records concerning re-payments by the 1st and 2nd Appellants which would show that the amount already repaid covered the principal sum of N14,400,000.00 concerning Exhibits 11,12 and J.O.B. 1, the respondent in paragraph 39 of the affidavit in support of the writ restated her position to the effect that the sum paid by the 1st and 2nd Appellants covered the principal and loan interest. Obviously, there is a dispute as to whether the principal sum has been paid or not, while the Respondent’s claim is for the principal and interest. The claims were lumped together.
As rightly argued by the learned counsel to the Appellants, the respondent failed to state how much of the principal sum remained unpaid and how much of the interest accrued to enable the Court ascertain whether the suit could be properly tried under the undefended list procedure.
I also agree that what the Respondent’s claim is not what the 1st and 2nd appellants admitted, the appellants not having admitted owing the principal sum but, made out that it had been paid.
Further, as rightly argued by the learned counsel to the appellants, the 3rd – 6th appellants did not admit liability to the claim and are entitled to their defence. From the provisions of Order 23 Rule 1 of the Kwara State (Civil Procedure) Rules, the affidavit in support must set forth the grounds upon which the cause of action is based as well as stating that to the deponent’s belief ‘there is no defence to the action.’
Even where the judge is satisfied and believes that there is no defence to the action would rightly enter the suit for hearing under the ‘Undefended List’ and the writ would be marked accordingly. In the present case, the appellants put up a defence and there was no deposition by the respondent as to there being no defence in her belief in the affidavit in support. Further, the respondent still had a duty to satisfy the Court that he had a good case before the judgment could be granted in her favour, the success is not automatic.
In the present case, the appellants challenged the affidavit evidence relied upon by the respondent, therefore the right thing would have been to transfer the suit to the general cause list to be tried fully. As I stated earlier in this judgment, the amount the 1st and 2nd appellants owe as principal sum that is outstanding is not certain, the total accrued interest is also not certain for the debt owed to rightly fall under a liquidated sum.
Further, in paragraphs 9 – 13 of the 1st, 2nd and 6th appellants’ affidavit in support of their Notice of intention to defend the action it was deposed as follows:
9. That I know as a fact that from the statement of account annexed as Exhibit ‘5’ by the claimant an entry of N15,800,000.00 was made by the claimant to the 2nd defendant’s account on the 18th day of February, 2016 as if there was a time the 2nd defendant applied for a loan of N15,800,000.00 Naira as a loan from the claimant.
10. That the input of the said N15,800,000.00 into the 2nd defendant’s account without applying or receiving the said sum from the claimant is a fraud perpetrated by the claimant to defraud the Defendants and to inflate the interest rates accruable to the 1st and 2nd defendants.
11. That I know that the claimant failed from her affidavit evidence to state which of the loans attract the interest rates charged in this case and how much of the principal sum remain unpaid.
12. That I know as a fact that Exhibit ‘2’, and Exhibit ‘1B’ to Exhibit ‘1D’ have no nexus with this the transactions (sic) leading to this case and there is nothing in the said exhibits showing that any of the defendants Guaranteed the loan, the subject matter of this case.
13. That I know as a fact that there is dispute as to whether the principal loan has been totally paid or not.
From the depositions in paragraphs 9 and 10 above the 1st, 2nd and 6th respondents are disputing the entries made in Exhibit ‘5’, the statement of account of the 2nd appellant by the respondent. It was alleged to be fraudulent on the part of the respondent, the 2nd appellant alleging not having applied for or received the sum of N15,800,000.00 from the respondent. It was also alleged in paragraph 11 that the respondent did not clarify from her affidavit evidence which of the loans attracted the interest rates charged and how much of the principal sum had not been paid back. In paragraph 12, it was alleged that Exhibits 2, 1B to D relied on, had no nexus with the transaction leading to the present case and nothing to show that the 3rd – 6th defendants guaranteed the two loans.
All the above, show that there was need to have sent the matter to the general cause list so that evidence could be led and the respondent’s witnesses cross examined on the allegations and denials to get to the root of the matter as deposed in the affidavit and accompanying Exhibits such as Exhibit ’11’, by the 1st and 2nd Appellants. See,NISHIZAWA LTD VS. JETHWANI (1984) 12 SC 234; (1984) 1 ANLR P. 470 and F.M.G. VS. SANI (1990) 4 NWLR (PT. 147) 688, 713. Where the defendant has disclosed a good defence to the action on the merit, he is entitled to do so. Whether, such defence succeeds or not is a different thing altogether. The Respondent’s claim did not qualify as a liquidated sum to have been tried under the undefended list procedure.
On the interest claimed, as rightly argued by the learned counsel to the respondent, formed part of the agreement for the loans, it is when the principal sum is ascertained as well as how the interest accrued and the amount payable then, the interest would be determined. Having held that all these would be properly determined by full trial, the amount of interest claimed or due would be determined since the appellants have disputed what is owed but, did not dispute that interest was included in the term of the loan agreement. See, JAMES D. DUNG VS. DIAMOND BANK PLC (2016) LPELR 40181 CA PP. 24 – 26, PARAS. E – B; AKPABUYO LOCAL GOVERNMENT VS. DUKE (TRADING UNDER THE NAME, and STYLE OF GIFFODAS VENTURES) (2001) 7 NWLR (PT. 713) 557 at 573 PARAGRAPH H, 574 PARAGRAPHS A – B, ALFOTRIN LTD VS. ATTORNEY – GENERAL, FEDERATION (1996) 9 NWLR (PT. 475) 634; EKWUNIFE VS. WAYNE (W.A.) LTD (1989) 5 NWLR (PT. 122) 422, ACADEMIC STAFF UNION OF THE FEDERAL POLYTECHNIC OFFA VS. UNITED BANK FOR AFRICA PLC & ORS (2013) LPELR 22493 (CA); OKOCHI VS. ANIMKWOI (2003) 18 NWLR (PT. 851) 1, N.M.C.B. (NIG) LTD VS. OBI (2010) 14 NWLR (PT. 1213) 169, at 188 – 189 and G.M.O. NWORAH & SONS CO. LTD. VS. AKPUTA (2010) 3 SC NJ 1 at 15.
Where interest is claimed, it would be difficult for the respondent to succeed in respect of the interest claimed, in this case where the appellants have not conceded to the claim and have made out that they have triable issues in defence. See, NKWO MARKET COMMUNITY BANK (NIG) LTD VS. OBI (2010) LPELR 2051 (SC) P. 23, PARAS. B – D.
The appellants also made allegations of fraudulent transfer of funds into the account of the 2nd appellant which also needs to be settled through full trial. There are instances where the Court would grant the defendant leave to defend an action under the undefended list procedure, some of which are:
(a) Where the defendant raises substantial questions of fact or law which ought to be tried, or
(b) Where the defendant alleges misrepresentation or fraud by the plaintiff.
(c) Where the facts alleged by the plaintiff are of such a nature as to entitle the defendant to interrogate the plaintiff or cross-examine the plaintiff’s witnesses on accompanying affidavit.
Where fraud is alleged, full trial would clear the air.
See, OGBONNA VS. UKAEGBU (2005) (supra), U.N.N. VS. ORAZULIKE TRADING CO. (1989) (supra), BEN NWANKWO VS. KAY – KAY CONSTRUCTION LIMITED (2014) LPELR 24336 (CA) and DENTON-WEST VS. MUOMA (2010) 2 NWLR (PT. 1177) 19 at 45 – 46. I hold that the appellants have disclosed triable issues, which will necessitate the hearing of the action under the general cause list. The appellants’ issue one is resolved in their favour.
In view of the resolution of the appellants’ issue one, there would be no need to go into the resolution of issue two to determine whether the trial Court was right to have held the 3rd to 6th appellants liable by holding that the two loans cannot be separated when it comes to liability in view of the various exhibits attached. The resolution of the second issue would be delving into the issues to be tried during the hearing under the general cause list, See, G.M.O. NWORAH & SONS CO. LTD. VS. AKPUTA (supra).
The two issues having been resolved in favour of the appellants, the appeal is meritorious, I allow same. The decision of the trial judge delivered on 14/12/17, in Suit Number: KWS/326/17 granting the respondent’s claims is hereby set aside. The suit is remitted to the Chief Judge of Kwara State for re-assignment to another Judge, other than I.A. Yusuf, J, for hearing under the general cause list by way of pleadings.
The parties are to bear their respective costs.
HAMMA AKAWU BARKA, J.C.A.: I agree
BOLOUKUROMO MOSES UGO, J.C.A.: I agree
Appearances:
Y.A. Dikko, Esq.For Appellant(s)
I.F. Yusuf with him, A.A. Omolabi and A.T. AbdulrazakFor Respondent(s)
