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Sam Fam Financiers Ltd. vs. Aina

SAM FAM FINANCIERS LIMITED

V

MR. CHARLES S. B. AINA

COURT OF APPEAL

( ILORIN DIVISION )

PATRICK IBE AMAIZU, JCA ( Presided and Read the Lead Judgment )

WALTER SAMUEL NKANU ONNOGHEN, JCA

JA’AFARU MIKA’ILU, JCA

CA/IL/26/2001

MONDAY, 17TH FEBRUARY, 2003

APPEAL - Notice of appeal - Decision of court that is appealed against - Need for notice of appeal in respect thereof - Order 3, rule 2 of the Court of Appeal Rules, 2002

APPEAL - Notice of appeal - Importance of - Defective notice of appeal Effect thereof

CONTRACT - Consideration - Adequacy of - Duty of court not to evaluate

COURT - Court’s discretion - Exercise of - What court must consider

FAIR HEARING - Audi alteram partem - Purport of

FAIR HEARING - Whether the appellant was denied fair hearing in the instant case

FAIR HEARING - How determined

JURISDICTION - Jurisdiction to hear a case involving a banker/customer relationship - Whether the proviso to section 251(1)(d) of the 1999 Constitution robs the Federal High Court of jurisdiction thereon

WORDS AND PHRASES - ‘Decision’ - Meaning of - Section 318 of 1999 Constitution

WORDS AND PHRASES - Audi alteram partem - Purport of

Issues:

1.            Does the lower court have the prerequisite and mandatory jurisdiction to hear and determine this suit which arose out of dispute between the appellant (a bank) and the respondent ( its customer) on the quantum and existence of a debt?

2.            Was the learned trial Judge right in holding that the appellant has no defence to the action and in refusing to place this suit on the general cause list by hearing same as undefended action?

3.            Did the plaintiff/respondent’s claim before the lower court disclose a reasonable cause of action?

4.            Was the lower court right in entering judgment against the appellant on the plaintiff/respondent’s untested, unreliable and self contradictory affidavit evidence.

Facts:

The appellant is an investment house, which receives money from people and pays interest on the deposits. The respondent is one of its customers. When the respondent’s deposit matured, the appellant could not pay him back his money. Because of pressure on the appellant from other customers, it sought and obtained an order of court for leave to convene a meeting of the creditors of the company for the purpose of considering, approving with or without modification a scheme of arrangement which it proposed to be made between the company and its creditors. Pursuant to the said order, a scheme of arrangement was entered into between the appellant and its creditors inclusive of the respondent, the resolution was subsequently sanctioned by an order of court. From the scheme of arrangement, the appellant was supposed to liquidate the debts owed the respondent in five equal quarterly instalments starting from 31st August, 1996  and ending 31st August, 1997. The appellant did not comply with this arrangement either partially or substantially. Consequently, the respondent qua plaintiff on 4th March, 1998 brought an action in the Federal High Court, Ilorin against the appellant under the undefended list claiming the sum of (a) N418,000.00 (b) £2540.00 and interest. After service of the writ on the appellant, it filed an unsuccessful preliminary objection challenging the jurisdiction of the court. Subsequently, it filed a notice of intention to defend the suit. The trial court after hearing argument on the notice of intention to defend, held that it did not raise any defence on the merit and thereafter heard the respondent on the claim. In a considered judgment delivered on 11/2/2000, judgment was entered for the respondent. Post judgment application by the appellant for leave to pay the judgment debts by monthly instalments of N10,000 was refused by the court. Dissatisfied with the ruling and the judgment, the appellant appealed to the Court of Appeal. The Court of Appeal considered section 251(1)(d) of 1999  Constitution which provides thus :

“Notwithstanding anything to the contrary contained in this constitution and in addition to such other jurisdiction as may be conferred upon it by an Act of the National Assembly, the Federal High Court shall have and exercise jurisdiction to the exclusion of any other court in civil causes and matters -

(d) connected with or pertaining to banking, banks, other financial institutions, including any action between one bank & another, any action by or against the Central Bank of Nigeria arising from banking, foreign exchange, coinage, legal tender, bills of exchange, letters of credit, promissory notes and other fiscal measures. Provided that this paragraph shall not apply to any dispute between an individual customer and his bank in respect of transactions between the individual customer & the bank”.