GUARANTY TRUST BANK PLC V. CHUKWUEMEZIE PETER EKEMEZIE (2011)

GUARANTY TRUST BANK PLC V. CHUKWUEMEZIE PETER EKEMEZIE

(2011)LCN/4975(CA)

In The Court of Appeal of Nigeria

On Friday, the 9th day of December, 2011

CA/IL/36/2011

RATIO

UNDEFENDED LIST PROCEDURE: CIRCUMSTANCES IN WHICH A CLAIM ON THE UNDEFENDED LIST WILL NOT BE DECIDED UNDER THE UNDEFENDED LIST PROCEDURE

Generally speaking, a claim on the undefended list, where the affidavit evidence is steeped in controversy should not be decided under the undefended list procedure see Jiprese vs Okonkwo (1987) 3 NWLR (Pt.620) 737, Ezuma vs. Know Market Community Bank Co. Ltd. (2000) 10 NWLR (Pt.676) 638 @ 657 Paras. G – H, C.C.B Plc. Vs. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt.651) p.19, Egbe vs. Adefarasin (1985) 1 NWLR (Pt.3) P.549). PER TIJJANI ABDULLAHI, J.C.A

UNDEFENDED LIST PROCEDURE: THE NEED FOR THE COURT NOT TO BE IN A HURRY TO ENTER JUDGMENT FOR THE PLAINTIFF IN A CASE PLACED ON THE UNDEFENDED LIST

APPLICATION FOR ADJOURNMENT: CONSEQUENCE OF THE COURT NOT CONSIDERING THE APPLICATION FOR ADJOURNMENT FIRST

In the case of Bamawo vs. Garrick (1996) 6 NWLR (Pt. 401) 356 – 367 thus court, Per Rowland JCA of blessed Memory held that “Where an adjournment is sought by a party to a case, the application must first be resolved before a decision is reached whether or not to proceed with hearing the matter. Doing otherwise would mean violating the principal of fair hearing as enshrined in section 36(1) of the 1999 Constitution without giving the party seeking for adjournment the opportunity of stating his own case. Again, in the case of Olumesan vs. Ogundepo (1995) 2 SCNJ 174 @ 186, the Apex Court pointedly held thus: “What seems to me important in the situation is that the application for adjournment having been made the same ought first to have been addressed, considered and ruled upon one way or the other…” PER TIJJANI ABDULLAHI, J.C.A

APPLICATION FOR ADJOURNMENT: WHETHER A CASE FIXED FOR HEARING CAN BE ADJOURNED

Learned counsel for the Respondent in support of the position taken by the learned trial Judge placed heavy reliance on the case of Udaji Nwadiogbu & 6 Ors. vs. Anambra/River Basin development Authority & 10 Ors. (2010) 19 NWLR (Pt.1226) pp. 368 – 369, where the apex Court held as follows:- “When a case has been fixed for hearing the trial court must ensure the hearing of the case except if a party applying for adjournment shows sufficient reason why the case must be adjourned, that is, by sufficient materials before the court upon which it can exercise its discretion. Otherwise an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard Solanke vs. Ajibola (1968) All NLP 46, N.H.D.I.P. Ltd. vs. Folarin (1992) 5 NWLR (Pt.239) 54, Jonason Triangle Ltd. vs. Charles Moh. & Partners Ltd. (2002) 15 NWLR (Pt.789) 176.” Let me pause at this juncture and state that with due respect to the learned counsel for the Respondent that though this case is later in time than the case of Olumesan vs Ogundapo (supra), same cannot be called in aid of the Respondent’s case. The facts of the case are not apposite to the facts of the case under consideration. In Udaji Nwadiogbu’s case, the Supreme Court did not say that a case fixed for hearing could not be adjourned and hearing must go on. Far from it, The Supreme has categorically stated that a case fixed for hearing can be adjourned if a party applying for adjournment shows sufficient reason why the case must be adjourned. Needless to say, in the case under consideration the learned counsel who sought for the adjournment gave his reasons for the said application which was to enable him file any application for extension of time within which to file his notice of intention of defend the action under Order 23 rule 3(1) of court of the Kwara State High Court (Civil Procedure) Rules, 2005. PER TIJJANI ABDULLAHI, J.C.A

UNDEFENDED LIST PROCEDURE: WHETHER THE PLAINTIFF HAS TO SATISFY THE COURT OF A PRIMA FACIE CASE BEFORE HE CAN BE ENTITLED TO JUDGMENT IN AN UNDEFENDED LIST PROCEDURE EVEN WHERE THE DEFENDANT DOES NOT FILE ANY DEFENCE

It is now trite that judgment in a case brought under the undefended list procedure is not automatic. The Respondent still had a duty to satisfy the Court before grant of judgment. The applicant, in a case like the one under consideration must satisfy the court that he, prima facie has a good case against a defendant. It also needs to be stressed that, the purport of Order 23 (The undefended list Procedure) is not that an applicant there under can bring any frivolous case before the Court. The court, right from the point of entering the case under the undefended list must be satisfied that there are good grounds for believing there is no defence to the action. If the plaintiff has not satisfied the court of a prima facie case, even where the defendant does not file any defence, he cannot be entitled to judgment. In the case of Osifo vs. Okigbo Community (supra) this court pointedly held thus: “Let me quickly emphasize it that until the court is satisfied that the plaintiff’s claim to which the defendant is invited to plead by filing a notice of intention to defend disclose a prima facie case. The point cannot be said to have been reached where the burden of proof can in law be deemed to have shifted to the defendant.” PER TIJJANI ABDULLAHI, J.C.A

JUSTICES

TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

Between

GUARANTY TRUST BANK PLC. Appellant(s)

AND

CHUKWUEMEZIE PETER EKEMEZIE Respondent(s)

TIJJANI ABDULLAHI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Justice, court of Kwara State; coram S.T Daibu (J) delivered on the 7th of March, 2011, whereby judgment was entered under the undefended list procedure in favour of the Respondent for the sum of N17,877,713.51 Million Naira (Seventeen Million Eight Hundred and Seventy-Seven Thousand, Seven Hundred and Thirteen Naira, fifty-one kobo) inclusive of interest of N5,324,000.00 at the rate of 10% on the principal sum of N12,553,173.51 as per the writ of summons.
The Respondent as can be gleaned from the records was the Plaintiff whilst the Appellant was the Defendant in the Court below. The Respondent commenced the suit appealed against under the undefended list procedure vide a writ of summons filed on the 7th of October, 2010.
The writ of summon as can be gathered from the proceedings of the Court below is for:
“The Claimant’s claim is for the sum of N17,877,713.15 (seventeen million eight hundred. and. seventy-seven thousand seven hundred and thirteen naira, -fifty-one kobo) only being the amount due and owing from the Defendant to the Claimant as part(sic) the money invested by the claimant in the Defendant’s Guaranty Trust Bank time deposit (commercial paper option) on 26th May, 2009 as well as on 26th February, 2010.
Interest on that amount i.e. N5,324,000.00 at the rate of 10% flat as agreed to by the parties from the 26th day of May, 2009 till date of delivery of judgment and thereafter at the rate of 10% per annum till final liquidation of judgment sum.
Interest of the sum of N12,553,173.51 at the rate of 10% flat as agreed to by the parties from the 26th day of May, 2009 till date of delivery of judgment and. thereafter at the rate if 10% per annum till final liquidation of judgment sum.
Dated this 7th of October, 2010”
On the 3rd of November, 2010, the case carne before the learned trial Judge, he entertained the Ex-parte application of the Respondent and placed the writ on the undefended list and ordered the Registrar to so mark it. The case was then adjourned to 17th January, 2011 for hearing. On 12th January, 2011oIL the court did not sit. Eventually, when it sat on the 7th, March, 2011, this was what happened:-
“Claimant present.
Victor Okogie for the claimant with Hamed, S. Okedare, A. Okouonchi, and. Kelechi Okeke Agnes, Akeem Ijaiya for the Defendant.

SGD
HON.JUSTICE S.T DAIBU
JUDGE
07/03/2010

Mr. Okosie: the case is brought under order 23 of the rules of this Court. The Claimant’s writ of summon is supported, by a 22 paragraph affidavit deposed to by himself.
Mr. Ijaiya: we filed notice of intention to defend with the affidavit in support we try to comply with Order 23 Rule 3 of the rule of this Court. I have just observed that by the Rules we have to file the notice of intention to defend and the affidavit in support not less than five days. The notice of intention was filed on 3/3/2011 a period less than five days. We sought for an adjournment to comply with the provisions of the rules and regularize errors. If we can move it today and hearing continues in the application.

SGD.
HON.JUSTICE S.T DAIBU
JUDGE
07/03/2010

Counsel for the Respondent objected to the application of the Appellant’s Counsel for adjournment and insisted of getting judgment for the failure of the Appellant’s Counsel to file the notice of intention to defend the action within the stipulated time provided under Order 23 Rule 3 of the High Court (Civil Procedure Rules) of Kwara State High Court, 2005.
In response to the submission of the learned Counsel Supra, the learned trial Judge held that:
“It is not in dispute that the Defendant did not file notice of intention to defend the suit within the time stipulated by Order 23 Rule 3 of the High Court Civil Procedure Rules 2005 of Kwara State. The Defendant did not also file any application for leave for extension of time. It is also on record that the defendant filed notice of intention to defend after 43 days. The authority cited by the defence. Counsel has nothing to do with the situation at hand; this is absolutely a situation of non-compliance with the rules of the court and. No application for leave for extension of time has been filed the only duty the court has on a return d.ate like this is to see if a notice of intention to defend has been filed or not because it is within time and. in the absence of that, I give judgment to the Claimant as per the writ of summons as that is the only option the Court is Left with today.

SGD
HON.JUSTICE S.T DAIBU
JUDGE
07/03/2010

Aggrieved by the decision of the learned trial judge reproduced supra, the Appellant filed a Notice of Appeal containing 4 grounds initially. Learned counsel laterfiled an additional three grounds of appeal from which he distilled issues for determination as follows:
“(A) Whether the learned trial Judge was right in entering judgment against the appellant without ruling on the application for adjournment.
(B) Whether the trial court was right in ignoring the notice of intention to defend even though filed out of time.
(c) Whether the learned trial Judge could have entered judgment in this case since the case included claims for interest element.
(D) Whether the learned trial Judge afforded the appellant a right to fair trial in this matter as guaranteed under the constitution.
(E) Whether the learned trial Judge at any point considered the claim of the plaintiff to be satisfied that there were good grounds to believe there was no defence and to entitle the plaintiff to judgment.”
Learned Counsel for the Respondent formulated five issues for determination to wit:
“(A) whether the learned trial Judge erred in law by entering judgment in favour of the Respondent in view of the appellant’s failure to file its Notice of Intention to defend within time as required under OR 23 r 3 and 4 (undefended list procedure) of the Kwara State High Court (Civil Procedure Rules) 2005 more so in the absence of a formal application before the Court for extension of time.
(B) Whether the trial Court’s exercise of discretion in refusing the Appellant’s oral application for adjournment was exercised judicially and judiciously.
(C) Whether in the absence of a Notice of Intention to defend on a return date, as it is/was in the instant case, the Lower court was right in entering judgment in favour of the Respondent as per the writ, regard being had to OR 23 r4.
(D) Whether the Appellant can be said to have been denied the right to fair trial/hearing by the Lower Court, regard being had, to OR 23 r 4 and 4 of the Kwara state High Court (Civil Procedure Rules) 2005.
(E) Whether the Trial Court can be said to have erred in law when it ordered payment of interest as prayed by the Claimant especially when same had been agreed upon by the parties.
On the 13th of October, 2011 when the appeal came before us for hearing, appellant’s Counsel adopted their brief dated 29th June, 2011 and filed on the 30th June, 2011 as their argument in this appeal. He urged us to allow the appeal and set aside the judgment of the Lower Court.
For his part, Learned Counsel for the Respondent adopted their brief dated 20th July, 2011 but filed on 22nd July, 2011. Though he formulated five issues for determination which are not dissimilar to the ones distilled by the appellants, he nonetheless adopted the issues as formulated by the Appellant.
I am of the view that the Appeal can be determined by giving consideration to any set of issues as formulated by the parties. The issues formulated by the Appellant are more precise and apt. Same will be used in determining the appeal under consideration.
Learned counsel for the Appellant in his wisdom decided to argue issue A and D together while issue B and E will be argued together. Issue C will be argued separately.

ARGUMENT OF THE ISSUES
Issue No A is whether the learned trial Judge was right in entering judgment against the Appellant without ruling on the application for adjournment and issue D is whether the learned trial Judge afforded the Appellant a right to fair trial in this matter as guaranteed under the Constitution. These two issues are said to have covered grounds 1 and 3 of the original Notice of Appeal and ground 3 of the additional grounds of appeal.
Learned counsel began the consideration of these issues by giving a background of how the suit under consideration was initiated i.e. under the undefended list procedure in accordance with the provisions of Order 23 Rule 1 of the Kwara State High Court Civil Procedure rules 2005. Learned counsel contended that albeit lately, he filed a Notice of Intention to defend the action in accordance with order 23(3)(1) of said High Court Civil procedure Rules.
Not only that, the Learned Counsel went on, it was himself that drew the attention of the learned trial Judge and the plaintiff /Respondent that the action was filed out of time, being a minister in the temple of justice. He applied for adjournment, to regularize his position but the learned trial judge instead of ruling on his application for adjournment, entered judgment in favour of the Respondent. This, the Learned Counsel submitted is a wrong procedure adopted by the Learned trial Judge as it is trite law that where Counsel seeks for an adjournment, the Court must first of all rule on the application for adjournment before asking the Counsel to proceed with the case. For this submission, Learned. Counsel relied on the case of BAMABO VS. GARRICK (1996) 6 NWLR (PT.401) 356 – 367, OLUMESAN VS. OGUNDEPO (1996) 2 SCNJ 174.
It is the contention of the Learned Counsel that what the Learned trial Judge did is a violation of right to fair hearing as enshrined in section 36(1) of the 1999 Constitution as the course charted by the Learned trial Judge, the Learned Counsel went on, completely denied the appellant his right to fair hearing. This being the case’ Learned Counsel submitted that the whole trail is a nullity. He relied on the case of Salu vs Egiebon (1994) 6 SCNJ (PT 2) 223 AT 239. We were urged to resolve these two issues in favour of the Appellant and against Respondent.
For his part, Learned Counsel for the Respondent after setting down the provisions of order 23 Rule 1 and relying on the case of the CHIEFILED (NIG.) LTD VS. ORIENT BANK NIG. PLC. (2004) 3 NWLR (PT. 860) P.262, NISHIZAWA VS. JETHWANI (1984) 12 SCNJ 234 P. 109, UDEMBA VS. MORECOB FINANCIAL NIG. LTD. (2003) 1 NWLR (PT.800) 86 AND THE CASE OF DAIKO VS. UBA PLC. (2004) 4 NWLR (PT.862) 123. Submitted that the Claimant having satisfactorily discharged his obligations under Order 23 Rule 3 of the Kwara State High Court (Civil Procedure) Rules, and the Lower Court having been satisfied with same and having considered the relevant authority cited by the Claimant, placed this suit on the undefended list procedure.
It is the submission of the learned counsel that by virtue of Order 23 r 3 of the Kwara State High Court (Civil Procedure) Rules 2005, a Defendant who intends to defend an action under undefended list is mandated to file his Notice of Intention to defend, not less than five days before the day fixed for hearing together with an affidavit disclosing a defence on the merit.
It is not in dispute, learned counsel argued, that the Defendant/Appellant herein filed its Notice of intention to defend the suit out of time, i.e 43 clear days. The appellant, learned counsel went on, did not place any application before the court for extension of time. The attitude of the Appellant herein was one of absolute non-compliance with the Rules of Court. Learned counsel submitted that in a situation like this, the duty of the Trial court is to give judgment in favour of the Claimant, which the Lower Court rightly did in this suit in line with Order 23 r 4 of the Rules of the Court, which provides as follows:
“Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3(1) or is not given leave to defend by the court, the suit shall be heard as undefended suit, and. judgment giving thereon, without calling upon the witnesses before the court to prove his case formally”.
Learned counsel opined that the position of the lower court is in consonance with the position taken by this Court in the case of LEO MELOS PHARMACEUTICAL INDUSTRIES LTD & 7 OR V UNION HOMES SAVING & LOAN LTD. (2011) 7 NWLR PT. 1257 PG. 532.
The Court had this to say:
“Where a process is to be prescribed filed within a specific time by law, and the process is incompetent. A prayer to the Court asking the court to deem the incompetent process as duly and property filed cannot cure the defect in filing the process out of time unless there is a substantive prayer for extension of time within which to file the process”. (Nwanko v. Abazie) (2003) 12 NWLR (Pt. 834) 381.
Learned counsel submitted that under the undefended list procedure, (Order 23 Rule 3) a Defendant who intends to defend has five days within which to file its defence but instead of doing so the Respondent failed and or neglected to do that and therefore the trial court was constrained under the Rules to give judgment in favour of the Claimant herein as equity aids the vigilant and not the indolent, learned counsel further submitted. For this contention, learned counsel relied on the case OF HOUSING AUTHORITY AND OR VS. MR. A. A. KALEJAYE (2010) 19 NWLR (PT. 1226) P. 154. We were urged to hold that the 3rd ground of appeal and the formulated issue therefrom is incompetent and should therefore be struck out. We were equally urged to resolve this issue in favour of the Respondent.
RESOLUTION OF THE ISSUES
Let me begin by stating the law pertaining to the undefended list procedure before delving into the arguments canvassed by the learned counsel in support of their respective positions.
Generally speaking, a claim on the undefended list, where the affidavit evidence is steeped in controversy should not be decided under the undefended list procedure see Jiprese vs Okonkwo (1987) 3 NWLR (Pt.620) 737, Ezuma vs. Know Market Community Bank Co. Ltd. (2000) 10 NWLR (Pt.676) 638 @ 657 Paras. G – H, C.C.B Plc. Vs. Samed Investment Co. Ltd. (2000) 4 NWLR (Pt.651) p.19, Egbe vs. Adefarasin (1985) 1 NWLR (Pt.3) P.549).

The undefended list procedure is not meant to shut out a defendant from contesting the suit brought thereunder and the court should not be in a hurry to enter judgment for the plaintiff in a case placed on the undefended list except in a clear case. In Haldo vs. Usman (2004) 3 NWLR (Pt.859) 65 @ 79 – 80, paragraphs H – C, per Umoren JCA, this court graphically stated thus:
“The procedure has, however in recent times created more problem than it was intended to obviate. It has become an unruly horse, but with a good man on the saddle, it can jump the huddles and land safely on the designated target. The unruliness may be due to the language of the rules and at times due to lawyers bringing in extraneous matters in an attempt to pull a wool across the eye of the Court, and at times due to the hasty attitude of some judges of the High Court to dispose of a good number of matters before them”.
Now, having stated the law and all that with regards to the said procedure (undefended list) I will proceed to determine whether in the light of what transpired in the Lower Court that two issues stated supra should be resolved in favour of the Appellant. Let me start with the issue of adjournment. On the 7th of March, 2010 when the Appellants’ Counsel realized, that the notice of intention to defend the action he filed was out of time, he applied for adjournment to regularize it. Hear him:
“In view of Order 23 Rule 3 of the Rule of the Court. I urge the court to give us adjournment to regularize the situation in the interest of Justice.”
Instead of the trial court to give a ruling in respect of the said application, the trial court went ahead and entered judgment in favour of the Respondent. She held inter alia thus:
“The authority citied by the defence Counsel has nothing to do with the situation at hand, this is absolutely a situation on non-compliance with the rules of court and no application for leave for extension of time has been filed the only duty the court has on a return date like this is to see if a notice of intention to defend has been filed or not because it that is within (sic) time and in the absence of that I give judgment to the claimant as per the writ of summons as that is the only option the court is left with today”.
In the case of Bamawo vs. Garrick (1996) 6 NWLR (Pt. 401) 356 – 367 thus court, Per Rowland JCA of blessed Memory held that
“Where an adjournment is sought by a party to a case, the application must first be resolved before a decision is reached whether or not to proceed with hearing the matter. Doing otherwise would mean violating the principal of fair hearing as enshrined in section 36(1) of the 1999 Constitution without giving the party seeking for adjournment the opportunity of stating his own case.

Again, in the case of Olumesan vs. Ogundepo (1995) 2 SCNJ 174 @ 186, the Apex Court pointedly held thus:
“What seems to me important in the situation is that the application for adjournment having been made the same ought first to have been addressed, considered and ruled upon one way or the other…”
Learned counsel for the Respondent in support of the position taken by the learned trial Judge placed heavy reliance on the case of Udaji Nwadiogbu & 6 Ors. vs. Anambra/River Basin development Authority & 10 Ors. (2010) 19 NWLR (Pt.1226) pp. 368 – 369, where the apex Court held as follows:-
“When a case has been fixed for hearing the trial court must ensure the hearing of the case except if a party applying for adjournment shows sufficient reason why the case must be adjourned, that is, by sufficient materials before the court upon which it can exercise its discretion. Otherwise an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard Solanke vs. Ajibola (1968) All NLP 46, N.H.D.I.P. Ltd. vs. Folarin (1992) 5 NWLR (Pt.239) 54, Jonason Triangle Ltd. vs. Charles Moh. & Partners Ltd. (2002) 15 NWLR (Pt.789) 176.”
Let me pause at this juncture and state that with due respect to the learned counsel for the Respondent that though this case is later in time than the case of Olumesan vs Ogundapo (supra), same cannot be called in aid of the Respondent’s case. The facts of the case are not apposite to the facts of the case under consideration. In Udaji Nwadiogbu’s case, the Supreme Court did not say that a case fixed for hearing could not be adjourned and hearing must go on. Far from it, The Supreme has categorically stated that a case fixed for hearing can be adjourned if a party applying for adjournment shows sufficient reason why the case must be adjourned. Needless to say, in the case under consideration the learned counsel who sought for the adjournment gave his reasons for the said application which was to enable him file any application for extension of time within which to file his notice of intention of defend the action under Order 23 rule 3(1) of court of the Kwara State High Court (Civil Procedure) Rules, 2005.

Lest I forget’ the Appellant’s counsel had in fact filed the notice of intention to defend under the Order and Rules of procedure of that court only to discover by his own goodself that same was not filed within the time stipulated by the Rules of Procedure of the trial court. The application if I may say so was just a simple one to regularize the notice of intention to defend the action by filing a motion for extension of time within which to do so.
That aside’ the learned trial Judge did not rule on the application seeking for an adjournment which was orally applied by the learned counsel for the appellant. I am of the considered view that the failure of the trial Judge to rule on the application is absolutely wrong as the learned trial Judge ought, first to have ruled on the application for adjournment before giving judgment in the case against the Appellant. This failure I am of the further view is sufficient for this issue to be resolved in favour of the Appellant and it is accordingly resolved in his favour.

This brings me to the examination of section 36(1) of the 1999 Constitution which deals with the second issue for determination. The section provides thus:-
“In the determination of his Civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
It is instructive to note that the provisions of the section reproduced above are self-explanatory and unambiguous. And no aid is required for their interpretation. In the determination of his civil rights and obligations a Nigeria citizen is entitled to a fair hearing within a reasonable time. I am of the considered view that, having filed a notice of intention to defend the Action in accordance with the relevant provision of the Rules albeit out of time and having realized that and applied for an adjournment to regularize the process which would enable the Court to hear him, he should had been accorded that opportunity by the trial court. The action of the learned trial Judge in refusing to give him that opportunity completely denied the Appellant a right to be heard as enshrined in section 36(1) of the 1999 Constitution. This issue like the previous one is resolved in favour of the Appellant.

ARGUMENTS OF THE ISSUES
The next two issues that will be considered and determined together are issues B and E which are (B) whether the Court was right in ignoring the notice of intention to defend even though filed out of time and (E) whether the learned trial judge at any point considered the claim of the plaintiff to be satisfied that there were good grounds to believe there was no defence and to entitle the plaintiff to judgment.
On these two issues, learned counsel began his consideration by tracing the genesis of the claim of the respondent which is as follows:
“This is a case in which the Respondent commenced action against the appellant for sums of money allegedly given to a staff of the bank but not in the banking hall. He never filled or opened an account with the bank and was not known by the bank. All the things he did were with an officer of the bank outside the banking premises.
So the bank had no official record of his existence as a customer. Furthermore, he never filled any deposit slips to deposit money with the bank but was merely doing business with a staff of the bank. Based on this, the bank had no record of him as a customer and when he came to the bank for the first time to claim his so called deposit, the bank obviously denied any knowledge of him since all he did was privately done with one Mr. Bidemi Olaolu a former staff of the bank. All these facts were made known by the appellant in the notice of intention to defend the suit which was filed before the court. See pages 29 – 31 of the record.”
It is the contention of the learned counsel that based on what transpired in the lower court as adumbrated above, the trial judge should have considered the defence of the Appellant no matter what before entering judgment in favour of the Respondent. Learned counsel, in support of this contention relied on the case of UBA vs. Dike Nwora (1978) 11 – 12 SC 1, Osifo vs. Okogbo Community Bank (2007) All FWLR (Pt. 372) p.1803 and Lado vs. The State (1999) 9 NWLR (Pt. 619) p.369.
It is the submission of learned counsel that the failure of the trial judge to consider the averments contained therein in their affidavit in support of notice of intention to defend the action, though filed out of time, amounted to a miscarriage of justice. Learned counsel urged us to resolve these two issues in favour of the Appellant and against the Respondent.
For his part learned counsel for the Respondent submitted that the duty of court on a return date where the defendant fails or neglects to put up any defence in a suit on undefended list is to give judgment on the hearing date. This, learned counsel went on, was what the trial court did in the instant case.
It is his further submission that the Appellant herein chose to sleep when it ought to file its defence not less than five days before the date fixed for hearing as required under Order 23 Rules 3, consequent upon which the trial court delivered its judgment in accordance with the provisions of the said order. For this submission learned counsel relied on the Monguno vs Bluewhales & Co (2011) 2 NWLR (Pt. 123) p 280, S.P.D.C. Ltd, vs Arho-Joe (Nigeria) Ltd (2006) 3 NWLR (Pt.903) and, Ben Thomas Hotel Ltd vs. Sebi Furniture Ltd (1989) 5 NWLR (Pt.123) 523. We were urged to resolve these issues in their favour.

RESOLUTIONS OF THE ISSUES
Now, let me begin my consideration of these issues by stating the obvious; that is, the notice of intention to defend the action is like the statement of defence before the court in undefended list proceedings. This being the case, I am of the view that before the court could enter judgment, it has a duty to look at the notice even if filed out of time since it was the Appellant’s defence before the Court. In the case of Osifo vs Okogbo Community Bank (2007) All FWLR (Pt.372) p.1803, this court Per Abba Aji, JCA held that:
“The learned trial Judge therefore ought to have considered the counter-affidavit filed by the appellants’ before entering judgment under the undefended, list The failure of the learned trial Judge to consider this vital document from the appellants, the counter-affidavit in the record, of the court, amount to miscarriage of Justice see Lado vs State (1999) 8 NWLR Pt.619, 369”.
It is note worthy to observe that the same error in the case reproduced supra is what the trial court in the instant case committed. This being the case, the judgment appealed against should and ought to be set aside, as the trial court was duly bound to look at the notice of intention to defend the action which was already before her even though same was filed out of time. It is now trite that judgment in a case brought under the undefended list procedure is not automatic. The Respondent still had a duty to satisfy the Court before grant of judgment. The applicant, in a case like the one under consideration must satisfy the court that he, prima facie has a good case against a defendant.
It also needs to be stressed that, the purport of Order 23 (The undefended list Procedure) is not that an applicant there under can bring any frivolous case before the Court. The court, right from the point of entering the case under the undefended list must be satisfied that there are good grounds for believing there is no defence to the action. If the plaintiff has not satisfied the court of a prima facie case, even where the defendant does not file any defence, he cannot be entitled to judgment. In the case of Osifo vs. Okigbo Community (supra) this court pointedly held thus:
“Let me quickly emphasize it that until the court is satisfied that the plaintiff’s claim to which the defendant is invited to plead by filing a notice of intention to defend disclose a prima facie case. The point cannot be said to have been reached where the burden of proof can in law be deemed to have shifted to the defendant.”
Learned counsel for the Respondent strenuously argued that once a case is filed under the undefended list procedure, the duty of the trial court is to give judgment where a defendant fails or neglects to file a notice of intention to defend the action. In support of this argument learned counsel relied on the case, of
Monguno vs Blueswhales & Co (supra) where it was held that:
“Under the undefended list procedure, where the defendant neglects to put up any defence, the duty of the court on the date fixed for hearing is to give judgment (underlining supplied for emphasis).
A cursory look at the decision of the court in the case stated supra, will leave no one in any doubt that, the facts of that case are not apposite with the facts of the case under consideration. In that case’ the defendant neglected to put up any defence. I hasten to say that in the instant case, a defence albeit belatedly, was put up by the Appellant, which was brushed aside by the learned trial judge.
In view of the foregoing, these issues are also resolved in favour of the Appellant and against the Respondent.
Last but not the least issue for determination is issue C which is whether the learned trial judge could have entered judgment in this case since the case included claims for interest element.

ARGUMENT OF THE ISSUE
Learned counsel for the Appellant contended that any claim that includes claim of interest ought to be proved by credible evidence. The claims of the Respond.ent before the court he went on were as follows:-
“(A) The claimants claim is for the sum of N17,877,713.51M (seventeen Million Eight Hundred and seventy-seven Thousand, Seven Hundred and Thirteen Naira, Fifty-One Kobo) only being the amount due and owing from the defendant to the claimant as part of the money invested by the claimant in the defendant Guaranty Trust Bank time deposit (commercial paper option) on 26th May 2009 as well as 26th May, 2009 as well as 26th February, 2010.
(B) Interest on that amount that is N5,324,000.00 at the rate of 10% flat as agreed to by the parties from the 26th day of may, 2009 till date of delivery of judgment and thereafter at the rate of 10% per annum till final liquidation of judgment sum.
(C) Interest on the sum of N12,553,713.51 at the rate of 10% flat as agreed to by the parties from the 26th day of May 2010 till delivery of judgment and thereafter at the rate of 10% per annum till final liquidation of judgment sum.”
Learned counsel submitted that the claims as endorsed clearly show that legs B and C are both claims for interest. Learned counsel relied on the case of Himma Merchant vs. Aliyu (1999) 5 NWLR (Pt.347) 667 also reported in (1994) 6 SCNJ 87, Ishola vs. SGB (1997) 2 SCNJ @ 31, Pascutto vs. Adecentro (1997) 10 SCNJ 1 @ 19 and Veepee vs. Cocoa Industries (2008) All FWLR (Pt.425) and submitted that evidence in a clam where interest is claimed must be adduced as the court is not entitled to act blindly by granting the interest as claimed.
Learned counsel further submitted that what the learned trial judge did in the instant case by granting the claims of the Respondent was wrong and ought to be set aside. We were urged to do so and resolve the issue in favour of the Appellant.
For his part, learned counsel contended that where interest is claimed by a claimant in a suit, the court is duty bound to order payment of same, especially where interest is contemplated by the agreement between parties and same is pleaded on the writ of summons. In the instant case, learned counsel further contended , the Respondent’s claim as it relates to interest is adequately pleaded in the writ of summons as well as the affidavit, as can be seen in the process filed before the trial court.
Learned counsel argued strenuously that the trial court has the power to award interest in two distinct circumstances viz:
a. As of right
b. Where there is power conferred by statute to do so, in exercise of the court’s discretion.
He urged us to hold that the trial court rightly exercised its discretion in the instant case. He placed reliance on the following cases Master Holding Nigeria Ltd. & Ors. vs. Emeka Okefiena (2011) 6 NWLR, Balogun v. E.O.C.B. Nig. (Ltd.) (2007) 5 NWLR (Pt.1028) P.584, L.T.B. Plc. V. K.H.C. Ltd. (2006) 3 NWLR (Pt.968) 443, and Texaco Oversea (Nig.) Unltd. Vs. Pedmar (Nig.) Ltd. (2002) 13 NWLR (Pt.785) P.256.
Learned counsel urged us to resolve this issue in their favour.

RESOLUTION OF THE ISSUE
Let me begin my consideration of this issue by referring to the claims of the Respondent as can be gleaned from the record of proceedings of the lower court. Undoubtedly, claims B and C are predicated on interest payable on the principle sum as alleged by the Respondent. The question to be asked is whether in such a claim, evidence, credible evidence must be adduced by the claimant for him to succeed..
In answering the question posed supra it will not be out of place for one to refer to decided authorities on this point. Let me start with the case of Himma Merchant vs Alliyu (supra) where the apex court held as follows:
“In a claim for interest on judgment debt, there must be evidence justifying the claim as the court is not entitled to act blindly by granting the interest as claimed”.
A close look at the proceedings of the trial court will reveal the fact that, this was what the learned trial judge did in this case, as she just granted the interest as claimed without requiring proof of the claim by credible evidence before her. This to my mind is a wrong approach by the trial court and as such the judgment and the award of interest based on this wrong approach ought to be set aside.
Again, on page 667 of that report, the apex court further held that:
“Adjudication on the plaintiff’s right to interest in such a case is linked to any other issue in the case based on the evidence placed before the court. The evidence called at the trial in such a case will also establish the proper rate of interest and the date from which should begin to run, whether from the accrual of the cause of action or otherwise”.
From what transpired in the lower court it was crystal clear that no evidence was adduced in this case to prove interest. It is my considered view that the only condition on which such an award could only stand is where it is agreed upon by the parties. But in this case there was no such agreement as the Respondent was not a customer of the Bank and the Bank therefore had no agreement with him on interest.
It is instructive to state at this juncture that all the cases cited by the learned counsel for the Respondent are not apposite with the facts of the instant case. Right from the beginning of this case, the claim of the Respondent was steeped in controversy. It has been copiously averred in the affidavit in support of intention to defend the action that the Respondent is not even a customer of the Appellant and that all the transactions allegedly entered between the Appellant and the Respondent were not done within the four walls of the Appellant.
That aside, in the case of Texaco Oversea (Nig.) Unltd vs. Pedmar Nigeria Ltd. (supra) one of the cases relied upon by the Respondent, adducing evidence, was made a condition precedent to a successful claim of interest. It was held in that case that:
“Where interest is being claimed as of right, the proper practice is to claim entitlement to it on the writ of summons and plead facts which show such an entitlement in the statement of claim. Since the statement of claim supersedes the writ of summons even if interest is not claimed on the writ of summons but facts are pleaded in the statement of claim and evidence led shows entitlement to the interest claimed, the court has a discretion to award interest, if satisfied with the evidence presented by the claimant.” (Underlining supplied for emphasis).
In the light of all that has been said this issue too is resolved in favour of the Appellant and against the Respondent.
On the whole, with all the issues having been resolved in favour of the Appellant, the appeal succeeds and it is hereby allowed. The judgment of the learned trial judge dished out on the 7th of March, 2010 in favour of the Respondent is hereby set aside. The case is accordingly remitted to the State High Court for
re-assignment to another Judge of that Court other than S.T. Daibu (J) to be heard, on the merit. N50,000.00 costs is awarded in favour of the Appellant and against the Respondent.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the succinct judgment just delivered by my learned brother, Abdullahi, J.C.A. I too would allow the appeal and abide by the consequential orders contained in the said judgment

ITA G. MBABA, J.C.A.: I have had the privilege of reading in draft, the judgment of my learned brother, Tijjani Abdullahi JCA, just delivered. I agree with him completely and there is nothing for me to add, except to say that the Rules and procedure of Court are meant to serve the interest of justice, as hand maids of the Law, to help the parties to get the justice enshrined in the substantive Law. The Rules cannot, therefore, be made to operate against the dictates of fairness and justice, to deny a party the opportunity of being heard, before decision is taken against him. That, of course, is part of the elementary principles of fair hearing. See the case of BARR. AKIRIKWEN & ANOR VS. PEOPLES DEMOCRATIC PARTY (PDP) & 104 ORS, an unreported decision of this Court, Yola Division, CA/YL/EPT/TR/R/4/2011, delivered on 6/9/2011, pages 44 – 45 thereof.
I therefore adopt the reasoning and conclusions of my lord Tijjani Abdullahi JCA, in the lead judgment as mine, and allow the appeal I abide by the consequential orders therein.

Appearances

Oladipo Olasope Esq.For Appellant

AND

Hameed Salahudeen Esq.For Respondent