SENATOR (MRS.) EME UFOT EKAETE v. UNION BANK OF NIGERIA PLC (2014)

SENATOR (MRS.) EME UFOT EKAETE v. UNION BANK OF NIGERIA PLC

(2014)LCN/7708(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 28th day of May, 2014

CA/A/198/2010

RATIO

COURT: JURISDICTION; THE CIVIL JURISDICTION OF THE HIGH COURT OF THE FERERAL CAPITAL TERRITORY

The civil jurisdiction of the High Court of the Federal Capital Territory, Abuja is provided for under Section 257 of the Constitution of the Federal Republic of Nigeria, 1999 which provides thus:
“257. (1) Subject to the provisions of Section 251 and any other provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of the Federal Capital Territory, Abuja shall have jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of an offence committed by any Person.
(2) The reference to civil or criminal Proceedings in this section includes a reference to the proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those which are brought before the High Court of the Federal Capital Territory, Abuja to be dealt with by the Court in the exercise of its appellate or supervisory jurisdiction.”
The appellant’s complaint borders on the territorial jurisdiction of the High Court of the Federal Capital Territory, Abuja. The Constitution is silent on the “territorial jurisdiction” of the High Court of the Federal Capital Territory, Abuja. It should be noted, however, that in Chief Chika Okafor & Anor v. Alhaji Tijani Hashim & 2 Ors (2001) 1 NWLR (Pt. 693) 183 at 190 this court, per Bulkachuwa, JCA (as he then was, now PCA) held, and I agree with my learned brother that “the High Court of the Federal Capital Territory is confined to the Federal Capital Territory” (Abuja). per. MOORE A. A. ADUMEIN, J.C.A.

STATUTORY INTERPRETATION; THE INTERPRETATION OF THE PROVISION ORDER 9 RURLE 3 OF THE HIGH COURT OF THE FEDERAL CAPITAL, ABUJA
While interpreting provisions in pari materia with those of Order 9 rule 3 of the High Court of the Federal Capital, Abuja (Civil Procedure) Rules, 2004 the Supreme Court in the case of Rivers State Government of Nigeria & Anor v. Specialist Consult (Swedish Group) (2005) 7 NWLR (Pt. 923) 145 at 171 – 172 per Niki Tobi, JSC stated as follows:
“A court in one State does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another State. In actions based on contract, jurisdiction depends generally on one of the following three alternative, namely:
(a) Where the contract was made;
(b) Where the contract ought to have been performed; or
(c) Where the defendant or one of the defendants resides.
There is also another settled procedure and it is this. The venue for the trial of a suit based on a breach of contract could also be determined by:
(a) Where the contract ought to have been performed; or
(b) Where the defendant resides; or
(c) Where the defendant carries on business per. MOORE A. A. ADUMEIN, J.C.A.

PRACTICE AND PROCEDURE: UNDEFENDED LIST; WHEN CAN JUDGMENT BE AWARDED UNDER THE UNDEFENDED LIST

The law seems to be that judgment should only be awarded under the undefended list where the facts put forward by the defendant in his notice of intention to defend do not amount to a defence in law. See Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283 and Ezekiel Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37. per. MOORE A. A. ADUMEIN, J.C.A.

CONTRACT: SIGNING AND EXECUTING A CONTRACT; WHETHER PERSON OF FULL LEGAL AGE AND DISCRETION WOULD NOT BE ALLOWED TO RESILE FROM A DOCUMENT WHICH HE FREELY SIGNED OR EXECUTED

The law is quite settled that a person of full legal age and discretion would not be allowed to resile from a document which he freely signed or executed. See Egbase v. Oriareghan (1985) 2 NWLR (Pt. 10) 884; Allied Bank of Nigeria Ltd. v. Akubueze (1997) 6 NWLR (Pt. 509) 374 and Ezekiel Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37. per. MOORE A. A. ADUMEIN, J.C.A.

GRANTEE: WHETHER A GRANTOR IS BOUND BY THE GRANTEE WHICH HE HAS GIVEN OR ISSUED TO ANOTHER PARTY OR PERSON

The law is clear and it is that a guarantor is bound by the guarantee which he has given or issued to another party or person. See Nwankwo v. Ecumenical Development Co-Operative Society U.A. (supra) at 410. per. MOORE A. A. ADUMEIN, J.C.A.

PRACTICE AND PROCEDURE: THE UNDEFENDED LIST PROCEDURE; THE DEFENCES OPENED TO DEFENDANT WHERE THE UNDEFENDED LIST PROCEDURE HAS BEEN UTILIZED IN A CLAIM FOR THE REPAYMENT OF A LOAN

The law has been settled by the Supreme Court that in an action where the undefended list procedure has been utilized in a claim for the repayment of a loan, the “defences open to the defendant are only two” and they are:
“(1) That the defendant had refunded the entire loan by the production of receipts, bank tellers or any other document showing that the debt was totally repaid.
(2) That he never borrowed the money in the first place, he never applied for the loan or debt, he never obtained any money and that any purported application of the loan or receipt for the loan issued by him is forgery.”
Per Musdapher, JSC (as he then was) in Ezekiel Okoli v. Morecab Finance (Nig) Ltd. (2007) 14 NWLR (Pt. 1053) 37 at 6. per. MOORE A. A. ADUMEIN, J.C.A.

COURT: JURISDICTION; THE TERRITORIAL JURISDICTION OF THE FEDERAL CAPITAL TERRITORY, ABUJA
The territorial jurisdiction of the Federal Capital Territory, Abuja shall be as defined in the Constitution. In order words, Section 299 of the Constitution (supra) provides that the provision of the Federal Constitution, 1999 as altered, “shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation…” Section 255(1) of the Constitution (supra) further provides that, there shall be a High Court of the Federal Capital Territory, Abuja.
A compound reading of all these provisions of the Constitution shows that the territorial jurisdiction of the High Court of the Federal Capital Territory is circumscribed or delimited by Sections 297-299(a)-(c) of the Constitution (supra) as altered. Per. JOSEPH TINE TUR, J.C.A.

Before Their Lordships

JOSEPH TINE TURJustice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEINJustice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSONJustice of The Court of Appeal of Nigeria

Between

SENATOR (MRS.) EME UFOT EKAETEAppellant(s)

AND

UNION BANK OF NIGERIA PLCRespondent(s)

MOORE A. A. ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent was the plaintiff in Suit No. FCT/HC/CV/869/2010, filed in the High Court of the Federal Capital Territory, Abuja wherein it claimed against the appellant, who was the defendant in the court below, as follows:
1. The sum of N552,239,218.92 (Five Hundred and Fifty-Two Million, Two Hundred and Thirty-Nine Thousand, Two Hundred and Eighteen Naira, Ninety-Two Kobo) representing the debt balance in Messrs. Petlib Envi-Chem Services Limited’s account with the plaintiff as at 30th November, 2009, which was a result of credit facilities granted to Messrs. Petlib Envi-Chem Services Limited and on the personal guarantee of the defendant.
2. Interest at the rate of 27.5% per annum with monthly rests from 1st December, 2009 to the date of judgment and thereafter, interest at the rate of 10% from the date of judgment until the judgment debt is liquidated.
3. Cost of this action.”

The respondent’s suit was entered in the Undefended List. With leave of court, the appellant filed a Notice of Intention to Defend. After hearing learned counsel for the parties on the matter, in a reserved decision delivered on the 15th day of April, 2010 the learned trial judge A. S. Umar, J. entered summary judgment as follows:
1. The defendant is to pay the sum of N552,239,218.92 to the plaintiff being the balance of debt owed by Petlib Envi-Chem Services Ltd, and guaranteed by the defendant.
2. The defendant shall also pay interest at the rate of 10% per annum from the date of judgment until the judgment debt is liquidated.
3. The cost of this suit is assessed at N50,000.00.”

This appeal is against the judgment of Umar, J. delivered on 15/04/2010. The appellant’s notice of appeal contains 4 grounds, reproduced below, without their particulars:

“GROUND 1
ERROR IN LAW:
The trial judge erred in law in entering judgment in favour of the respondent against the appellant under the undefended list in the light of several issues raised by the appellant that warranted the transfer of the matter to the general cause list, and thereby occasioned a miscarriage of justice.

GROUND 2
ERROR IN LAW:
The learned trial judge erred in law in entering judgment in favour of the respondent against the appellant, who was merely a Guarantor of the loan facility purportedly owed to the respondent.

GROUND 3
ERROR IN LAW:
The learned trial judge erred in law in entering part judgment in favour of the respondent and transferring the rest of the respondent’s claims to the general cause list.”

GROUND 4
ERROR IN LAW:
The learned trial judge erred in law in assuming jurisdiction to entertain into between the respondent and Petlib Envi-Chem Services Limited in Trans Amadi Branch of the respondent, in Port Harcourt, Rivers State of Nigeria outside the territorial jurisdiction of the High Court of the Federal Capital Territory, Abuja.”

In accordance with the Rules of this Court, the parties filed and exchanged briefs.

The following four issues were framed by the learned counsel for the appellant:
(1) Was the judgment of the trial court against the appellant under the undefended list procedure valid in law in view of the notice of intention to defend filed by the appellant raising serious triable issues. (Arising Ground 1).
(2) Was the appellant rightly sued for recovery of the credit facility when there was no demand or claim against or joinder of the borrower/primary obligor and the second guarantor in the suit. (Arising Ground 2).
(3) Was the trial court right under Order 21 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 2004 to enter part judgment in favour of the respondent while transferring the rest of the respondent’s claim to the general cause list. (Arising Ground 3).
(4) Was the trial court right in entering judgment against the appellant even when it did not have the territorial jurisdiction to entertain the matter? (Arising Ground 4).

Learned Senior Counsel for the respondent, however, formulated only 2 (two) issues, namely:
“i) Whether the learned trial judge had the territorial jurisdiction to entertain this suit. (Appellant’s Issue No.(4) distilled from her Ground 4 in the Notice of Appeal).
ii) Whether the learned trial judge was justified in entering judgment for the plaintiff (herein respondent) on the undefended list under the circumstances and in the manner he did, (Appellant’s issue (1) (2) & (3) distilled from Grounds 1, 2 and 3 of her Grounds of Appeal.”

In the determination of this appeal, I adopt the respondent’s Issue 1 as framed and the appellant’s Issues 1, 2 and 3, which will be renumbered as lssues 2, 3 and 4. The renumbered issues 2 and 3 will be taken and determined together.

ISSUE 1
Whether the learned trial judge had the territorial jurisdiction to entertain this suit.

Learned counsel for the appellant submitted that the territorial jurisdiction exercised by a High Court of a State is derived from the Constitution of the Federal Republic of Nigeria and, to buttress this submission, he referred the court to the cases of Ngige v. Capital Bancorp Ltd. (1999) 7 NWLR (Pt. 609) 71 and N.B.C Plc v. Nwaneri (2000) 14 NWLR (Pt. 843) 310.

He contended that no feature in the case conferred territorial jurisdiction on the High Court of the Federal Capital Territory, Abuja to entertain and or determine the respondent’s suit.

Relying on a number of cases, the learned counsel for the appellant argued that the territorial jurisdiction of the Lower Court did not cover the appellant “residing outside the territorial boundaries of…the Federal Capital Territory, Abuja in respect of causes of action arising outside the State”. The cases cited and relied on by the appellant include Mclaren v. Jennings (2003) NWLR (Pt. 808) 470; Afribank Nig. Plc v. Bonik Ind. Ltd (2006) 5 NWLR (Pt. 973) 300 and University of Nigeria v. Orazuilke Trading Company Ltd. (1989) 5 NWLR (Pt. 119) 19.

The learned counsel for the appellant argued that the Lower Court ought to have struck out the respondent’s suit for want of territorial jurisdiction because:
“From the documentary evidence before the trial court, the credit facility the subject-matter of this suit and this appeal was entered into by the parties at the respondent’s branch in Port Harcourt, Rivers State. The primary obligor resides and carries on business at No. 7A Trans Amadi Industrial Estate in Port Harcourt also in Rivers State. The loan sum was advanced in Port Harcourt, Rivers State and was to be re-paid in Port Harcourt, Rivers State. See paragraph 4 of the respondent’s affidavit in support of her notice of intention to defend. The address of the appellant herself at all times material to this case was in Lagos, Lagos State as discernable from the processes before the Lower Court.”

In his response, the learned Senior Counsel for the respondent argued that the action “is a suit in personam under a contract of personal guarantee” and that Order 9 rules 3 and 4 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004 require suits “for breach of contract” or “all other suits” to be commenced “where the defendant resides or carries on business”. He referred to the appellant’s address in Abuja and submitted that “she resides and carries on business in the Federal Capital Territory of Abuja within the territorial jurisdiction” of the Lower Court.

The loan advance was granted by the respondent, through its Corporate Banking Office at Plot 468, Trans-Amadi Industrial Layout, Port Harcourt, Rivers State to Petlib Envi-Chem Services Limited of 17A Trans-Amadi Industrial Estate, Port Harcourt, Rivers State, as per exhibit B – the Guarantee executed by the appellant. The address of the appellant is conspicuously omitted in the said Guarantee. However, the address of one Barr. Essien Esema, a witness to the Guarantee (exhibit B) is given as Plot 12, Konoko Cresc., Wuse II, Abuja. Most of the correspondence from the respondent to the appellant gave the appellant’s address as 20, Jose Marti Crescent, Asokoro, Abuja. See, for example, exhibit ‘E”, to which the appellant gave reply through exhibit “Petlib D”.

The writ of summons, marked Undefended List, was itself served on the appellant through Room 207, National Assembly Complex, Senate New Building, Abuja and to which summons the appellant entered appearance unconditionally or without any protest. There is also no doubt that, at the time the action was commenced against her, the appellant was a serving Distinguished Senator of the Federal Republic of Nigeria. See exhibit E, which was not denied by the appellant.

As a serving Senator of the Federal Republic of Nigeria, at the time the action was commenced against her, the appellant could be presumed to reside and carry on her ‘legislative business’ in the Federal Capital Territory, Abuja in addition to any other places where she might have resided and carried on other businesses.

The respondent’s action is for the specific performance of the guarantee – exhibit B given by the appellant on or about the 6th day of December, 2006. Therefore, the respondent’s suit, whether under the undefended list or not, was properly commenced and determined by the High Court of the Federal Capital Territory, Abuja pursuant to and under Order 9 rule 3 and 4(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 which provide that:-
“3. All suits for specific performance, or breach of contract, shall, where the contract ought to have been performed, or where the defendant resides or carries on business in the Federal Capital Territory, be commenced and determined in the High Court of the Federal Capital Territory, Abuja.
4.(1) All other suits shall where the defendant resides or carries on business or where the cause of action arose in the Federal Capital Territory, be commenced and determined in the High Court of the Federal Capital Territory, Abuja.”
While interpreting provisions in pari materia with those of Order 9 rule 3 of the High Court of the Federal Capital, Abuja (Civil Procedure) Rules, 2004 the Supreme Court in the case of Rivers State Government of Nigeria & Anor v. Specialist Consult (Swedish Group) (2005) 7 NWLR (Pt. 923) 145 at 171 – 172 per Niki Tobi, JSC stated as follows:
“A court in one State does not have jurisdiction to hear and determine a matter which is exclusively within the jurisdiction of another State. In actions based on contract, jurisdiction depends generally on one of the following three alternative, namely:
(a) Where the contract was made;
(b) Where the contract ought to have been performed; or
(c) Where the defendant or one of the defendants resides.
There is also another settled procedure and it is this. The venue for the trial of a suit based on a breach of contract could also be determined by:
(a) Where the contract ought to have been performed; or
(b) Where the defendant resides; or
(c) Where the defendant carries on business
I do not see the jurisdiction of the High Court of Lagos State in any of the above.
Can the appellants be said to have carried on business in Lagos as held by the Court of Appeal? I think not. With respect, I do not agree with the Court of Appeal that the appellants carried on business in Lagos State.”
(Underlining mine for emphasis)

The feature in this case that conferred territorial, or venue jurisdiction, on the Lower Court is that, at the relevant time, the appellant resided and carried on business within the Federal Capital Territory, Abuja.

Having regard to the circumstances of this case, the trial court, High Court of the Federal Capital Territory, Abuja, had the territorial jurisdiction, also known as venue jurisdiction, to entertain the respondent’s suit.
I resolve this issue against the appellant in favour of the respondent.

ISSUES 2 AND 3
(2) Was the judgment of the trial court against the appellant under the undefended list procedure valid in law in view of the notice of intention to defend filed by the appellant raising serious triable issues.
(3) Was the appellant rightly sued for recovery of the credit facility when there was no demand or claim against or joinder of the borrower/primary obligor and the second guarantor in the suit.

Learned counsel for the appellant referred to Order 21, rule 3 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 and submitted that a suit under the Undefended List should be transferred to the general cause list for hearing on the merits if a defendant’s notice of intention to defend raised triable issues. The learned counsel then submitted that “a defendant’s affidavit in support of notice of intention to defend is said to raise a triable issue where the affidavit is such that the plaintiff will be required to explain certain matters with regard to his claim or where the affidavit throws a doubt on the plaintiff’s claim” and he cited the case of United Bank for Africa Plc v. Mode Nigeria Limited (2001) 13 NWLR (Pt. 730) 335. Relying on the case of Nishizawa Ltd. v. Jethwani (1984) 12 SC 234 the appellant contended that:
“it is sufficient if the affidavit discloses a triable issue or that a difficult point of law is involved; that there is a dispute as to the facts which ought to be tried, that there is a real dispute as to the amount due which require the taking of an account to determine or any other circumstances showing reasonable grounds of a bona fide defence.”

The learned counsel referred to the affidavit in support of the notice of intention to defend and the exhibits tendered by the appellant and argued that the appellant did not admit the respondent’s claims. Specifically, learned counsel referred to paragraphs 8 and 16 of the affidavit in support of the notice of intention to defend and argued that there was no agreement between what the respondent claimed and what was admitted by the appellant and that any discrepancy “invalidates the affirmation by the respondent that the appellant had no defence to her action and undermines the basis of the action being placed on the undefended list which assumed the correctness of the amount of indebtedness asserted by the respondent”. He referred to exhibits Petlib “A’, “C” and “D” tendered by the appellant and the case of Chrisdon Ind. Company Ltd. v. A.I.B. Ltd (2002) 8 NWLR (Pt. 768) 152 at 187 to buttress his argument.

The appellant contended that there were conflicting facts in the affidavits of the parties but the trial court resolved and explained away the conflicts in favour of the respondent without any oral evidence. For example, the appellant said that she raised the issue that the respondent had fraudulently altered the terms of the Guarantee form which she and her co-guarantor signed and this fact was not denied by means of any further affidavit.

The appellant relied on the case of African Continental Bank Plc v. Cyprian Ezenwa (2004) 7 NWLR (Pt. 872) 326 and submitted that “where issues of fraud, forgery or other cases of criminality which require proof beyond reasonable doubt, are raised in the notice of intention to defend a trial court ought to transfer the matter to the general cause list”

It should be noted that the learned counsel for the appellant made elaborate submissions on this issue. The further arguments include those in paragraphs 4.025 and 4.027 of the appellant’s brief, which arguments are hereunder reproduced:
“We submit that the respondent’s case ought not to have been placed and heard under the undefended list procedure ab initio. We submit that contrary to the provisions of Order 21 Rule 1 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004, there was no application by the respondent before the trial court to have the matter placed under the undefended list procedure. We submit that the word “application” as used by Order 21 Rule 1 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules 2004, envisages a formal application made ex-parte to the court upon which the court would consider the application with its accompanying affidavit and satisfy itself judicially and judiciously that the case was indeed one worthy of being heard under the truncated procedure of the undefended list. See the cases of Maley vs. Isah (2000) 5 NWLR (Pt. 658) 651; Cash Affairs Finance Ltd. vs. Inland Bank Nig. Plc (2000) 5 NWLR (Pt. 658) 588; Baba vs. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt. 712) 496.

We further submit that failure to have sought leave of court to place the matter on the undefended list was fatal to the suit, making the entire action and the judgment based on same, nullity. See the cases of Cash Affairs Finance Ltd. vs. Inland Bank Nig. Plc (2000) 5 NWLR (Pt 658) 588; Baba vs. Habib Nigeria Bank Ltd. (2001) 7 NWLR (Pt. 712) 496.

In response to the above arguments, the respondent stated in paras. 3.1 to 3.3 of its brief as follows:
“In paragraph 4.025 at page 15 through 4.032 at page 18 of its brief, appellant argued very labouriously that the suit ought not to have been placed on the undefended list in the first instance because there was no Order of court in that regard vide a motion ex-parte. Appellant placed reliance on an obvious mis-reading of Order 21 Rule 1(1) of the High Court of the Federal Capital Territory Abuja (Civil Procedure Rules) 2004. The provision reads:
1.(1) Where an application as in Form 1, as in the appendix is made to issue a writ of summons in respect of a claim to recover a debt or liquidated money demand…etc”.
(2) The plaintiff shall deliver to the Registrar on the issue of the writ of summons as may copies of the supporting affidavit etc.
My Lords, application for a writ under Form 1 in the appendix is the only way prescribed by the rules. Once the application conforms with the said Form 1, it is the duty of the Registrar to place the same before a judge in chambers who in turn performs the administrative duty of having it either placed on the undefended list or the general cause list. The said rule did not prescribe any other way of making the application. Therefore the procedure of applying by way of motion ex-Parte as is the case in some other jurisdictions is alien to the rule of the High Court of the Federal Capital Territory Abuja. Indeed, precautionary, the respondent did apply vide a motion ex-parte (not copied) but was turned down at the Registry because that was a procedure not used in that jurisdiction.
Submit that the decision whether to place a matter on the undefended list or not, is between the Registrar and the Judge in chambers without any input by the plaintiff/respondent. A plaintiff having complied with Order 21 Rule 1(1) as in Form 1 usually directed to the Registrar, with affidavit pursuant to Rule 2, drops off. Both hearing/return dates and hearing notices are outside the direction and control of the plaintiff.
Conversely, (but without conceding any irregularity), the appellant having received the writ of summons, clearly marked as undefended list, and did not complain, but instead proceeded to file a notice of intention to defend with what it portends to be an affidavit disclosing a defence on the merits, cannot after an adverse judgment be heard to complain.”

In support of its argument that the appellant could not be heard to complain about the alleged irregularity, the respondent referred the court to the Order 2 rule 1(1) of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 and the cases of Union Bank of Nigeria Plc v. Chief Tiegbara Edamkue & Ors. (2005) 7 NWLR (Pt. 925) 520 at 536 and Odua Investments Co. Ltd. v. Talabi (1997) 10 NWLR (Pt. 523) 1.

Learned counsel referred to the case of Arab Bank (Nig.) Limited v. Dantata (1976 – 1974) 3 N.B.L.R. 288 and submitted as follows:
“From the Guarantee form signed by the guarantors there were clearly two guarantors. While the appellant was sued, the second guarantor Prof. Etekamba Edem Ekwo was not sued even though there was in existence a joint guarantee in favour of the respondent. No demand or claim was made against the second guarantor, even when from the contract of guarantee both guarantor, jointly guaranteed the said credit facility. It was therefore wrong for the respondent to have proceeded against the appellant only.”

On whether the affidavit in support of the notice of intention to defend disclosed a defence on the merits, the learned senior counsel for the respondent submitted that “a close scrutiny of the said affidavit will show that it neither was sworn to by the appellant or indeed on her behalf nor did it disclose a defence on the merits of the case”. Learned senior counsel referred the court to some paragraphs of the affidavit in support of the notice of intention to defend and some clauses of the Guarantee made to the respondent and contended that the appellant did not, by her notice of intention to defend, disclose prima facie defence on the merit, such as would have readily agitated the trial court to refuse to enter judgment under the undefended list procedure.

After referring to what it termed as “some significant features” in the instant case and the cases of Agro Millers Limited v. Continental Merchant Bank (Nig.) Plc (1997) 10 NWLR (pt. 525) 469 and Jipreze v. Okonkwo (1987) 3 NWLR (Pt. 62) 737, the respondent asked the court to regard the defence urged by the appellant as a mere sham.

The respondent submitted that the finding of the learned trial judge that the appellant had no real defence “cannot be faulted” especially as the primary debtor’s letter of January 19, 2009 (sic – 2010) in reply to the respondent’s letter dated 4th January, 2010 “did not contain a denial of the indebtedness but instead a plea for time and a litany of “mia culpa mia culpas”.

I think that the respondent’s arguments have strong legal foundations. In the first place, I am in agreement with the respondent’s submission that a creditor can proceed against a guarantor without the presence of the primary debtor or principal obligor. See Fortune Intercontinental Bank Plc v. Pegasus Trading Office (GmbH) (2004) 4 NWLR (Pt. 863) 369 and Chief Peter Amadi Nwankwo v. Ecumenical Development Co-operative Society (EDCS) U.A. (2007) 5 NWLR (Pt. 1027) 377. In this case, therefore, the non-joinder of Petlib Envi-Chem Services Ltd – the primary debtor, is not fatal to the respondent’s claims.

In this case, the facts are that Petlib Envi-Chem Services Ltd – a company in which the appellant has controlling or majority shares and sits as the Chairman of its board of directors, obtained a loan from the respondent, at a time when the appellant was also a director of the board of the respondent bank. The appellant guaranteed the repayment of the loan together with interests on the principal amount and overdrafts advanced to the said company in 2006. As at the 30th day of November, 2009 the debt owed the respondent by the said company (Petlib Envi-Chem Services Limited) was N552,239,218.92, which amount the respondent claimed from the appellant under the undefended list vide a writ so marked issued on 16/02/2010.

The appellant and one Prof. Etekamba Edem Ekwo gave a “guarantee” dated the 6th day of December 2006 to the respondent in respect of the loan advanced to Petlib Envi-Chem Services Limited. This guarantee was tendered by the respondent as exhibit “B” and it spans pages 10 – 13 of the record of appeal. The appellant alleged in paragraph 4(a) of the affidavit in support of her notice of intention to defend, and this point was amplified in the arguments of her learned counsel, that “the terms the Guarantee (sic) unilaterally altered by the plaintiff without the consents of the defendant and other Guarantor (Prof. Etekamba Edem Ekwo)”. Curiously, the appellant did not tender as an exhibit the guarantee she and Prof. Etekamba Edem Ekwo gave to the respondent and which guarantee was not “unilaterally altered” by the respondent. I agree with the respondent’s learned senior counsel that the appellant ought to have produced and attached her own copy of the guarantee to the affidavit in support of her notice of intention to defend to prima face show the fraudulent alteration of the guarantee.

In any case, I have examined exhibit B, the guarantee tendered by the respondent, and no where therein can I find any material alteration or fraudulent alteration. In the circumstances, therefore, it is clear that exhibit “B” was duly issued and signed by the appellant and Prof. Etekamba Edem Ekwo to the respondent and the appellant would not be allowed to resile from the content thereof. The law is quite settled that a person of full legal age and discretion would not be allowed to resile from a document which he freely signed or executed. See Egbase v. Oriareghan (1985) 2 NWLR (Pt. 10) 884; Allied Bank of Nigeria Ltd. v. Akubueze (1997) 6 NWLR (Pt. 509) 374 and Ezekiel Okoli v. Morecab Finance (Nig.) Ltd. (2007) 14 NWLR (Pt. 1053) 37.

The learned trial judge rightly stated that, by her notice of intention to defend, the defences or grounds thereof put forward by the appellant in her said notice are as follows:
“1. That the plaintiff’s claims are substantially untrue, oppressive and frivolous.
2. The loan transaction leading to this suit is fraught with illegalities and irregularities perpetrated against (Petlib Envi-Chem Services Ltd) the Primary obligor and the present claims do not in the circumstance represent the true state of affairs between the parties herein.”

As stated earlier, the appellant guaranteed the loan advanced by the respondent to the appellant’s company. The appellant is, therefore, a guarantor which means “One who makes a guaranty or gives security for a debt” and “guaranty” means “a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another who is liable in the first instance”, while “guarantee” itself means “the assurance that a contract or legal act will be duly carried out” – Black’s Law Dictionary, Deluxe Ninth Edition, page 773.

In the instant case, the appellant and the said Prof. Etekamba Edem Ekwo by virtue of clause 1 of exhibit “B” undertook “on demand…to pay” to the respondent “all sums of money…upon the loan” advanced to the appellant’s company – Petlib Envi-Chem. Services Limited and which liability, under Clause 22 of the Guarantee (exhibit B) “shall be joint and several”. Therefore, the appellant’s liability was not only ‘Joint”. It was also “several” and could be enforced without the joinder of the other guarantor. In this case, the other guarantor – Prof. Etekamba Edem Ekwo, apart from signing exhibit B, did not give any security for the repayment of the debt, unlike the appellant who put forward her property in Lekki area of Lagos State, as “an added security” for the loan. Furthermore, the status of the said Prof. Etekamba Edem Ekwo was unknown while the appellant was well known to the respondent as she was a director of the respondent bank, at the time the loan was obtained from the respondent. The respondent could have only acted in granting the said loan upon the assurance from the appellant to pay her company’s debt in the case of the failure or inability of the company to repay its debt. As a matter of honour, the appellant should not be heard resiling from her clear and unambiguous guarantee. I will not say much on this.

I only wish to reiterate that the appellant was validly sued for recovery of the debt without the joinder of the principal debtor – Petlib Envi-Chem Services Limited and the appellant’s co-guarantor – Prof. Etekamba Edem Ekwo.

In the present case, by its letter dated 31st July, 2008 – exhibit D, the respondent informed the appellant that the amount of indebtedness stood at N450,155,038.88 as at 31/07/08 and asked her to perfect the security for the loan. The respondent also informed the appellant as follows:
“The expected payments from SPDC scheduled to commence from the first quarter of this year and on the basis of which the encroachments see, on your account were restructured into loans is yet to come to fruition. We wonder what has become of the payments received from SPDC to date?”

In another letter dated 2nd November, 2009 – exhibit D1, the respondent informed the appellant that the debt stood at N538, 628,696.98 as at 30th October, 2009 and gave her notice “that unless the outstanding debt and accrued interest” was paid as demanded, legal proceedings against the appellant, for the recovery of the outstanding debt and accrued interests, would be taken. In the final letter of demand dated 4th January, 2010 – exhibit “E”, the respondent’s Solicitors – Lucius E. Nwosu & Partners, informed the appellant that the indebtedness stood at N538,628,696.98 as at 30/11/2009 and gave her “a 21-day deadline” to pay the debt.

It should be noted that appellant never denied the amount claimed by the respondent. All that the appellant did was to give a catalogue of excuses for the failure to repay the loan and the accrued interests and to attach “two Union Bank Plc drafts, with numbers 01298278 and 0129827 respectively for Five Million Naira (N5,000,000.00)” to “show good faith/willingness” to pay the debt. These were in the letter written by her Attorneys & Solicitors – Mill Hill, erroneously dated January 19, 2009 (instead of January 19, 2010) in reply to the respondent’s letter dated 4th January, 2010 – exhibit E.

When the facts put forward by the respondent in its undefended list processes, including its affidavit in support thereof, are juxtaposed with the facts and purported defences of the appellant in her notice of intention to defend, it is patently obvious that the cock-and-bull stories of the appellant were merely intended to hoodwink the Lower Court in erroneously transferring the respondent’s suit to the general cause list. I am of the view that the learned trial court rightly refused to allow the appellant to dribble the court and the respondent with a view to frustrating the action under the undefended list, when the appellant’s notice of intention to defend did not prima facie disclose a reasonable defence in the eyes of the law. The decision of the Lower Court accords with the time-honoured principle of law that:
However, it is equally the law that under the undefended list procedure, a defendant who has no real defence to the action should not be allowed to dribble and frustrate the plaintiff and cheat him out of the judgment he is legitimately entitled to by the delay tactics aimed, not at offering any real defence to the action but at gaining time within which he may continue to postpone meeting his obligation and indebtedness. See Nishizawa v. Jethwani (1984) 12 SC 234 and Macaulay v. Nal Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283.”
– Agro Millers Ltd. v. Continental Merchant Bank (Nig.) Plc (1997) 10 NWLR (Pt. 525) 469 at 477 – 478 per Mahmud Mohammed, JCA (as he then was). See also Okoli v. Morecab Finance (Nig.) Ltd (2007) 14 NWLR (Pt. 1053) 37 at 60.
Without more, I resolve these issues in favour of the respondent against the appellant.

ISSUE 4
Was the trial court right under Order 21 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure Rules) 2004 to enter part-judgment in favour of the respondent while transferring the rest of the respondent’s claim to the general cause list.

The learned counsel for the appellant submitted that “Order 21 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 did not envisage the entry of part-judgment in an undefended list action, while transferring the rest of the claims which cannot be sustained under the undefended list, to the general cause list”, arguing that this was the procedure adopted by the Lower Court.

Earlier in this judgment, I reproduced the claims or reliefs granted by the Lower Court. After granting the said reliefs, the trial court then held and concluded as follows:
“Having refused to award the prejudgment interest put at 27.5% the said claim of interest is hereby transferred to the general cause list for the plaintiff to prove.
In the end the claim succeeds in part.”

The learned Senior Counsel for the respondent stated in his brief that the respondent had since filed a notice discontinuing the claim for pre-judgment interest but ‘the said notice was not copied in the records compiled by the appellant”. I think the proper thing was the respondent to compile and transmit its alleged notice of discontinuance as additional records of appeal to this court, as provided by Order 8 rule 6 of the Court of Appeal Rules, 2011. However, since the appellant has not denied the claim of the respondent that it had since filed a notice of discontinuance of its relief for pre-judgment interest, I hold that the said notice of discontinuance was indeed filed by the respondent and the prayer for prejudgment interest is deemed abandoned.

In any case, I agree with the submission of the respondent that the refusal of the claim for pre-judgment interest was not fatal to the decision awarding the principal sum claimed and post-judgment interest thereon, because these claims were undefended and the respondent was entitled to judgment without the need or necessity for a trial on the merits.
This issue is also resolved in favour of the respondent against the appellant.

CONCLUSION
Having resolved all the issues in favour of the respondent, I find no merit in this appeal, which is hereby dismissed.
The judgment of the Lower Court is hereby affirmed.
The sum of N100,000.00 (One hundred thousand naira only) is awarded as costs in favour of the respondent against the appellant.

JOSEPH TINE TUR, J.C.A.: I am in agreement with my Lord that this appeal lacks merit and stands dismissed.

Section 3(4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 reads as follows:
“(4) The Federal Capital Territory, Abuja, shall be as defined in Part II of the First Schedule to this Constitution.
(5) The provisions of this Constitution in Part I of Chapter VIII hereof shall in relation to the Federal Capital Territory, Abuja, have effect in the manner set out thereunder.”
Chapter VIII Part I Section 297-299 of the Constitution further provides as follows:
“297(1) There shall be a Federal Capital Territory, Abuja the boundaries of which are as defined in Part II of the First Schedule to this Constitution.
xxxxxx”
The territorial jurisdiction of the Federal Capital Territory, Abuja shall be as defined in the Constitution. In order words, Section 299 of the Constitution (supra) provides that the provision of the Federal Constitution, 1999 as altered, “shall apply to the Federal Capital Territory, Abuja as if it were one of the States of the Federation…” Section 255(1) of the Constitution (supra) further provides that, there shall be a High Court of the Federal Capital Territory, Abuja.
A compound reading of all these provisions of the Constitution shows that the territorial jurisdiction of the High Court of the Federal Capital Territory is circumscribed or delimited by Sections 297-299(a)-(c) of the Constitution (supra) as altered.
My learned brother has reproduced the provisions of Section 257(1) and (2) of the Constitution (supra). I do not need to be repetitive. A careful reading of the provisions will reveal that the High Court of the Federal Capital Territory, Abuja is empowered to adjudicate over proceedings which originate in the High Court of the Federal Capital Territory, Abuja and those before it by way of the exercise of appellate or supervisory jurisdiction from inferior Courts or Tribunal. The plaintiff (Union Bank of Nigeria Plc) invoked the original jurisdiction of the Federal Capital Territory, Abuja by instituting this action on 16th February, 2010. The address for service of processes is given as follows:
“The Writ was issued by L. E. Nwosu, Esq- (SAN), whose address for service is at 27 Ohaeto Street, D/Line, Port Harcourt, Rivers State or Anachebe & Anachebe, 5, Rhine Street, Maitama District, Abuja, agent for the Plaintiff, legal practitioner whose address is 27 Ohaeto Street, D/Line, Port Harcourt, Rivers State or Anachebe & Anachebe, 5, Rhine Street, Maitama District, Abuja which Plaintiff has offices all over Nigeria including at Union Bank Plc, Zonal Office, Central Business District, Abuja.”

On 10th March, 2010 the defendant’s learned Counsel filed a motion on notice praying for extension of time to file a Notice of Intention to defend the suit out of time and a deeming order. The learned Counsel provided address for service to be:
“Signed
A.T. Kehinde,
Akinlolu Kehinde & Co.,
6, Cairo Street,
Wuse 2, Abuja.”

For service on:
“The plaintiff, C/O,
His Counsel, L. E. Nwosu, Esq. (SAN),
Anachebe & Anachebe,
5, Rhine Street”
Maitama, Abuja.”

Paragraphs 1-5 of the affidavit sworn in support of this application reads inter alia:
“1. I, TAIWO SANNI, Adult, Male, Nigerian citizen, legal practitioner of 6, Cairo Street, Wuse 2, Abuja do hereby make oath and state as follows:
2. That I am a legal practitioner in the Law Firm of Akinlolu Kehinde & Co., Counsel to the defendant/Applicant and by virtue of which position I am conversant with the facts of this case.
3. That I have the consent and authority of both the Defendant/Applicant and my employer to depose to this affidavit.
4. That all the facts herein stated are within my personal knowledge except otherwise stated.
5. That we are the Counsel to the Defendant/Applicant in this matter.”

From these facts, it can be seen that the learned silk appearing for the plaintiff and Counsel to the defendant gave their respective addresses for service of processes to be within the Federal Capital Territory, Abuja.

Order 12 rules 1(1)-(2), 3(1) & (2) and 4 of the High Court of the Federal Capital Territory, Abuja reads thus:
“1(1) A defendant shall within a time limited in the writ or other originating process enter an appearance in the manner prescribed.
(2) A defendant shall enter an appearance by delivering to a Registrar a memorandum of appearance in Form 11, or where leave was obtained before appearance, a notice in Form 12, respectively, as in the Appendix.
x x x x x x x x x x x x
2(1) A defendant appearing in person shall state in the memorandum of appearance an address for service which shall be within the jurisdiction.
(2) Where a defendant appears by a legal practitioner, the legal practitioner shall state in the memorandum of appearance his place of business and an address for service which shall be within the jurisdiction and where any legal practitioner is only the agent of another legal practitioner, he shall also insert the name and place of business of the principal legal Practitioner.
3(1) Where the memorandum does not contain an address for service, it shall not he accepted.
xxxxxxx xx x xxxxx. ”
When a defendant appears by a legal practitioner who states in the memorandum of appearance his place of business and an address for service of processes within jurisdiction, in my humble opinion, it should be presumed, until the contrary is proved, that the defendant has submitted to the jurisdiction of the Court through the legal practitioner acting as his agent and cannot be heard to argue either in the trial Court or on appeal that the suit was not before the Court that issued the processes and within jurisdiction. The legal Practitioner might however have entered a conditional appearance in protest. Order 12 rule 7 of the Rules (supra) namely:
“7. A defendant before entering an unconditional appearance is at liberty to take out a summons to set aside the service on him of the writ or other process, or to discharge the Order authorizing the service.”

No objection was raised in the Lower Court by the appellant objecting the jurisdiction of the Lower Court and cannot be so raised in the Court of Appeal at this stage.

Notes or paragraphs 12/1/5 and 12/1/11 pages 112 and of the Supreme Court Practice Vol.1 1997 of England as follows:
“12/1/5: Acknowledgement of Service by Solicitor: A solicitor who acknowledges service for a defendant impliedly warrants or contracts that he has authority to do so. See note “Solicitor acting in proceedings without authority,” under Summary Jurisdiction of Court over Solicitor,” in Vol.2, Pt.11, Section D1.
If a solicitor acknowledges service for a defendant without his knowledge or authority, the defendant has a clear right to have the acknowledgement of service vacated (Re-Gray, Gray vs. Coles (1891) 65 L.T. 743, in that case on motion; in Yonge vs. Toynbee (1910) 1 K.B. 215, C.A.; and The Neptune (1919) P. 21, on summons; in Simmons vs. “Liberal Opinion” (1911) 1 KB. 966, p.968, on application in Court at conclusion of trial). The plaintiff too may apply to strike out the acknowledgment of service (see Yonge vs. Toynbee, Porters vs. Fraser (1912) 29 T.L.R. 91).
The solicitor must give his brief business address within the jurisdiction which will be the address for service (r.3)(2). In an agency case, the agent solicitor must give the name and address of the principal solicitor (r.3)(3). There is no distinction between the act of the London agent and the act of the country solicitor (Re Newen) (1903) 1 Ch.812). A solicitor cannot be agent for another solicitor who is out of jurisdiction. A solicitor who is a defendant may acknowledge service as solicitor for himself. Where a solicitor acknowledges service for several defendants at the same time, only one acknowledgment of service need be used (para. (4) which is taken from the former Order 12, rule 17).
Acknowledgment of Service in person: A defendant is entitled to acknowledge service in person (para. (1) which was taken from the former Order 12 rule 11); but in the following cases, an acknowledgement of service in person cannot be entered, namely, (i) where the defendant is a person under disability (Order 80, rule 2); or (ii) where the defendant in person has no address within the jurisdiction, rule 3(2)(a). See also para. 12/1/13
An unqualified person, other than the defendant himself, cannot lawfully acknowledge service on behalf of the defendant (see Re Ainsworth (1905) 2 K.B. 103) but the defendant need not to attend personally in order to acknowledge service. The acknowledgement of service must be signed by him, and if it complies with this rule, the acknowledgement of service is good although delivered to the officer by a third person (Oake vs. Moorecroft (1869) L.R. 5 Q. B. 76). But a third person so acting as agent for a defendant acknowledging service in person is not entitled to take any other step on behalf of the defendant, which is a breach of the Solicitors Act 1974, Section 20, and therefore, contempt of Court (Re-Ainsworth (1905) 2 K.B. 103). This rule of practice does not apply in the county Court (Re Ainsworth, ibid.; Charles P. Knnelly & Co. Ltd. vs. Harding, Wace & Co. (1918) 87 L.J.K.B. 342 C.A.).”
12/1/11: Acknowledgement of service under protest:
In an action against a firm, a person served as a partner, but who denies that he was a partner or liable as such at the material time may acknowledge service under protest and so long as such acknowledgment of service stands, it is treated as an acknowledgment of service for the firm. See Order 81, rule 4(2). In a district registry action against a firm, a person served as a partner but who denies that he was a partner or liable as such at the material time, may enter an acknowledgment of service under protest in London, provided he does not personally reside or carry on business in the district.”

The argument under consideration involves matters of practice and procedure in the High Court of the Federal Capital Territory, Abuja on grounds that the appellant does not reside within nor carry on business within jurisdiction within the territorial jurisdiction of the Federal Capital Territory, Abuja without being mindful of the fact that the appellant, her learned Counsel to enter memorandum of appearance instructed to be served within jurisdiction of the Federal Capital Territory, Abuja.

The purpose of this is to enable processes to be served on a defendant through an agent within jurisdiction, example, a legal practitioner of his choice without the arduous task of having to obtain leave to serve processes out of jurisdiction. The writ usually fixes the time for acknowledging service of processes.

The Notice of Appeal filed by the appellant on 21st October, 2010 reads as follows:
“5. RELIEF SOUGHT FROM THE COURT OF APPEAL:
To allow this appeal, set aside the judgment of the trial Court and in its stead transfer the respondent’s suit to the general cause list for re-trial on the merits before another Judge of the High Court of the Federal Capital Territory, Abuja”

What can one say of this prayer? The prayer is incongruous when viewed by the argument involving lack of procedural jurisdiction by learned Counsel to the appellant. The prayer is difficult to understand.

“1. PERSON DIRECTLY AFFECTED BY THE APPEAL:
APPELLANT:
SENATOR (MRS) EME UFOT EKAETE
Appellant’s Address:
C/o Her Solicitors,
Chief Chris Uche (SAN) & Co.,
Angels’ Court,
#34 Kumasi Crescent,
Wuse 11, Abuja.

RESPONDENT:
UNION BANK OF NIGERIA PLC,
Zonal Office,
Central Business District,
Abuja.
DATED THIS 21st DAY OF APRIL, 2010.
Signed
Gordy Uche, Esq.
Chief Chris Uche (SAN) & Co.
Angels’ Court,
34 Kumasi Crescent,
Wuse 11,
Abuja.
08033229364.”
(See page 101 lines 11 to page 103 lines 1-9 of the printed record).

Thus if this appeal is eventually allowed the appellant’s prayer that the suit should be remitted for “retrial on the merits before another Judge of the High Court of the Federal Capital Territory, Abuja” as the person directly affected by the appeal namely, the appellant and the respondent cannot be understood. It is a contradiction with reality. There is no miscarriage of justice. This constitutes waiver.

The authorities of Kossen (Nig.) Ltd. vs. Savannah Bank (Nig.) Ltd. (1995) 9 NWLR (Pt. 42) 439 at 451 Paragraphs “D” – “E”; Adebayo vs. Johnson (1969) 1 All NLR 176 at 190-191 and Eboh vs. Akpotu (1968) 1 All NLR 220 at 221 shows that what appears to be a procedural irregularity touching on jurisdiction of the Court can be waived by a party where there is no miscarriage of justice. Furthermore, Order 21 of the High Court of the Federal Capital Territory, Abuja (Civil Procedure) Rules, 2004 governs proceedings under the Undefended List procedure. Rule 1(1) of the Order limits the causes of action that can be instituted to the issuance of Undefended List Procedure to “a writ of summons in respect of a claim to recover a debt or liquidated money demand…”

A “debt” is liability on a claim; a specific sum of money due by agreement or otherwise. It is the aggregate of all existing claims against a person, entity, or State, a non-monetary thing that one person owes another, such as goods or services. An amount is “liquidated” because it is settled, fixed or can be determined by an agreement through arithmetical calculation in terms of, in this case. Naira and Kobo, dollars and pounds calculation. See Black’s Law Dictionary, 9th edition, page 462.

On 15th March, 2010 S. Y. Sanni, Esq. moved the Lower Court on application to enter a memorandum of appearance on behalf of the appellant. The Court granted the application. The entries on record appear as follows:
“Nwosu: This writ is taken out pursuant to Order 21(1) and by which we are asking for judgment against the defendant in the sum of N552,239,218.22 Messrs Petlib Emvi-Chem Service.
To this writ is attached an affidavit of 15 paragraph as well as Exhibit “A”-“F”. The significant exhibit are Exhibit “B” a guarantee signed by the defendant along with one other person. See paragraph 1 and 5 of Exhibit “B”, “D”.
Exhibits “D(1)”-“A” letter of demand
Exhibits ‘E”-“A” letter from the solicitors of the plaintiff.
The contract (Exhibit “B”) paragraph 1. See paragraph 9
The defendant did not dispute the correctness of the amount. The defendant solicitors had admitted the indebtedness in their reply letter to our demand letter. Against this plethora of compelling evidence, the defendant is an attempt to frustrate judgment filed on notice of intention to defend.
The 1st ground of the defence that the claim is untrue. That this is a general deviel. There is nothing in the entire affidavit of the defendant showing that the defendant gave the deponent any information which believing is to be true and the circumstances of his belief. Form 4(a) of the affidavit in defence does not avail, the defendant in this case, in prove(sic) of any defence on merit on the case before this Court base on the guarantee and the statement of account certified. If anything the so called affidavit should be to the benefit of Petlib Company not Ufot Ekaete.

Finally the defendant, Senator Ufot Ekaete in all the correspondences making a defended on her, has never written to dispute even one, neither did she swear to any affidavit disputing even one. See Planwell Watershed Ltd. & Anor. vs. Ogala (2003) 18 NWLR (Pt. 859) page 478, at 488 paragraphs “F”-“A”; Kabiru v. Ibrahim (Pt. 857) NWLR at page 332.
Sanni: The defendant has put forward a notice of intention to defend disclosing a defence on merit. The grounds upon which we are contending are:
1. That the plaintiff claims are substantially untrue.
2. The loan transaction leading to this suit is fraught with illegalities and irregularities.
We have filed an affidavit disclosing a defence on merit. The affidavit on defence is dispose by Yohana Odumu. The affidavits have disclosed triable issues for the matter to be transferred to general cause list.

Exhibit “D” of the defendant affidavit, the solicitors stated categorically that the plaintiff had refused to oblige the defendant with the statement of account.
On the issue of Petlib the primary obligor, there is serious concealment of fact by the plaintiff, as no mention of N10 million pose on to the plaintiff.
We are not saying we are not indebted but the issue at hand the true state of indebtedness of the primary obligor which is Petlib and the plaintiff is the question at hand. The exact figure of the extent of indebtedness there is needed to reconcile between the parties. As there are serious concealment relating to the amount.
There are serious question to be answered. See UBA vs. Jagab (2007) 5 SC page 13. There is a dollar account which the plaintiff had not disclosed to the defendant.
Lastly, it is a trite law that other a defendant raises a defence disclosing that there is some issues or question which the plaintiff need to answer that action cannot be determined under the Undefended List. We urged the Court to transferred the matter to general cause list which give all the parties involved a right to substantive claim.
Nwosu: See Order 9 of Federal Capital Territory High Court (FCTH) on issue of jurisdiction. The guarantee form is a standard guarantee form to some portion are inapplicable so it was strike out and initial by respective parties.
Court: Case adjourned to 15th April, 2010 for ruling.”

Not even in argument nor in the Notice of Intention to defend the suit in 20 paragraph affidavit sworn to on 10th March, 2010 by Yohanna Odumu, Litigation Officer in the Law Firm of Akinlolu Kehinde & Co. of Counsel to the appellant did the appellant proffer a figure contrary to the sum of N552,239,218.22 put forward by the respondent as the outstanding judgment debt supported by documentary Exhibits “D(1)” and “B”. A dispute is a conflict or controversy that has given rise to a lawsuit. For example, “the land in dispute” simply means the land being claimed by the plaintiff and counter-claimed by the defendant. See Akintola vs. Solano (1986) 2 NWLR (Pt. 24) 598 at 622. If the respondent puts the appellant’s indebtedness to be N552,239,218.22 kobo but this is not disputed by the appellant supported by documents showing what has so far being paid, or there is no challenge to the sum put forward by the respondent. No one sets out to prove that which has not being specifically challenged or denied. See Olale vs. Ekwelendu (1989) 7 SCNJ (Pt. 2) 62 at 102. If a debt is self-evident, it does not require further proof. See Akintola vs. Solano (1986) 2 NWLR (Pt. 24) 598 at 620. Admitted facts need no further proof: Andon vs. Ayi II & Ors. (2004) All FWLR (Pt. 227) 444 at 482 and Elendu vs. Ekwoaba (1995) 3 NWLR (Pt. 386) 704 at 747.

Stamping and initiating of bank tellers or receipts, etc, is prima facie evidence of receipt of the moneys stated thereon by a bank. See Aeroflot vs. UBA (1986) 3 NWLR (Pt. 21)188 at 223-224; Ishola vs. S.G. (Nig.) Ltd. (1997)2 SCNJ 1 at 23. The appellant should have attached payment receipts or documents to show the money repaid and the outstanding balance which could be settled by a matter of arithmetical calculation.

It is a rebuttable presumption that credit entries in a customer’s passbook is an admission by the bank in his favour of the debt. See British and North European Bank Ltd. vs. Zalzstein (1927) All E. R. 556. But the appellant simply denied the guarantor’s indebtedness in her counter-affidavit without supportive documentary exhibits. That is not enough.

Order 21 rule 3(1) of the Rules (supra) provides that the intention to defend the suit shall be accompanied “with an affidavit disclosing a defence on the merit” before the defendant shall be allowed by the Court to “defend upon such terms as the Court may think just.” A “defence on merit” should be accompanies by affidavit and documentary exhibits showing what was paid and the balance outstanding.
I share the views of my learned brother Judge in Knight Bridge Ltd. & Anor. vs. Nathaniel Atamako (2000) 2 NWLR (Pt. 645) 385 at 390 that for the defendant to show a defence on the merit, “…he must as far as possible deal specifically with the plaintiff’s claim and state clearly what his defence is and what facts and documents he relies on.”

Nigeria has just passed through a period when many banks, caused by financial malpractices arising from distressed debts of this nature has caused financial troubles to the economy of the nation, leading to the merger of many banks. Some banks of financial institutions have been declared bankrupt by the Central Bank of Nigeria because of insider malpractices by directors in whom the shareholders had entrusted with management of their hard earning. The learned trial Judge found that at the time of the loan transaction the appellant was a member of the Board of the respondent. The appellant guaranteed Petlib Emvi-Chem Services Limited since 30th November, 2009. No single documentary exhibit has been put before the Court below nor in this Court to show how much has been paid and what is outstanding. But when sued, the appellant sought to cling to technical arguments to defeat the course of justice.

No Court administering law and equity will allow technical arguments to defeat the course of justice. Technical arguments to defeat the course of justice was rejected in G. B. Ollivant, Ltd. vs. C. A. Vanderpuye (1935) 2 WACA 368 when the Court held at page 370 that:
“As to the second objection, the contention of the respondent appears to be correct, but it is of a purely technical nature, and this Court will not refuse to attempt to do substantial Justice between the parties upon a pure technicality.
We have accordingly decided to hear the appeal upon its merits.”

May the Courts in Nigeria continue to keep and maintain the conscience of the society.

The learned trial Judge by-passed technicalities, heard the suit on the merit, and entered judgment for the respondent. Nothing urged on this Court has persuaded me to upturn the judgment of his Lordship A. S. Umar, J., which I uphold. I also dismiss this appeal and abide by the orders made by my learned brother M. A. A. Adumein, JCA.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother, Adumein, JCA.

My learned brother has exhaustively analyzed the issues involved in this appeal. I am in full agreement with his reasoning and conclusion.

I have nothing useful to add. The appeal is completely devoid of merits. I dismiss the appeal and affirm the judgment of the Lower Court.

I abide by the consequential orders as to cost.

Appearances

Gordy Uche, Esq. with Wilfred Eneye Esq.; James Odiba Esq.; Festus Abibi Esq.; Chukwudi Maduka Esq.; Frank Molokwu Esq.; John Sambo Esq.; and C. O. Chukwumerije Esq.For Appellant

AND

L. E. Nwosu (SAN) with A. N. Ayaogu, Esq. and Z. A. Nwosu, Esq.For Respondent