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U.B.A. Plc. v. Mode Nigeria Ltd

UNITED BANK FOR AFRICA PLC.

V

MODE NIGERIA LIMITED

OBIAJULU ONOCHIE

COURT OF APPEAL

( ENUGU DIVISION )

EUGENE C. UBAEZONU, JCA ( Presided and Read the Lead Judgment )

JOHN AFOLABI FABIYI,  JCA

MUSA DATTIJO MUHAMMAD,  JCA

CA/E/105/99

THURSDAY, 5TH APRIL, 2001

APPEAL - Grounds of appeal - Issue for determination - Formulation of in respect of each ground of appeal - Undesirability of

APPEAL - Grounds of appeal - Issues for determination being more than the grounds - Impropriety of

APPEAL - Misdirection or error in law - Allegation of - Duty on the appellant to state particulars and nature of

APPEAL - Notice and grounds of appeal - Whether proper to strike out because issues exceed the grounds - How overlapping issues should be treated

FAIR HEARING - Litigants - Hearing of - Need for - Failure to so do Effect

PRACTICE AND PROCEDURE - ‘Preliminary objection’ - Meaning of

PRACTICE AND PROCEDURE - Grounds of appeal - Issue for determination - Formulation of in respect of each grounds of appeal -  Undesirability of

PRACTICE AND PROCEDURE - Grounds of appeal - Issues for determination being more than the grounds - Impropriety of

PRACTICE AND PROCEDURE - Misdirection or error in law - Allegation of - Duty on the appellant to state particulars and nature of

PRACTICE AND PROCEDURE - Order 9, rule 4 of High Court of Anambra

State (Civil Procedure) Rules, 1988 - Intendment of

PRACTICE AND PROCEDURE - Undefended List Procedure - Aim of

PRACTICE AND PROCEDURE - Undefended List Procedure - Triable issue therein - When raised

WORDS AND PHRASES - ‘Preliminary objection’ - Meaning of

Issue:

Whether the affidavit in support of notice of intention to defend set out facts sufficient to raise a prima facie defence to the monetary claim by the 1st respondent to warrant an order transferring the case to the general cause list.

Facts:

The 1st respondent herein maintained an account with the appellant’s bank at the Idowu Taylor, Victoria Island branch of the appellant.  Despite letters by the respondents to the appellant advising the appellant not to honour cheques drawn on its account in view of change of signatories to the said account, the appellant continued to allow the account to be operated. Huge sums of money were thus withdrawn from the said account. It is the contention of the respondents that the cumulative sums of money, lodged into the account by the respondents and their clients and customers from the period the appellant was duly notified of the change of the signatory to 4 /2/99 the balance in the account should be N45,166,493.03.  What was however left in the account as at 4/2/99 was N8,196.53.

It is the failure of the appellant to credit the respondent’s account with the various amounts of money withdrawn from the account that made the respondents to file a suit under the Undefended List Procedure in the High Court of Enugu State claiming the sum of N45,166,493.03 being the respondents’ balance in their account with the appellant.  The learned trial Chief Judge gave his ruling dismissing the appellant’s application to defend the suit and immediately proceeded to enter judgment against the appellant in accordance with the claim.

Dissatisfied with the judgment, the appellant appealed to the Court

of Appeal.  During the hearing of the appeal, the respondents gave two notices of preliminary objection which primarily challenged the competence of the notice and grounds of appeal.  After hearing of arguments of counsel on the preliminary objections the Court of Appeal overruled them.