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  • 2001-04-16
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Yahaya v. Waje Community Bank Ltd

ALHAJI SHUAIBU YAHAYA

V

WAJE COMMUNITY BANK LIMITED

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA ( Presided )

RABIU DANLAMI MUHAMMAD, JCA ( Read the Lead Judgment )

VICTOR AYEPOMO OYELEYE OMAGE, JCA

CA/K/80/2000

THURSDAY, 15TH MARCH, 2001.

EVIDENCE - Better or further affidavit - Receiving same in undefended list procedure  - Implication of

PRACTICE AND PROCEDURE - Defence on merit - Meaning of

PRACTICE AND PROCEDURE - Undefended List - Defence on the merits How determined - Whether necessary to consider proof of defence

PRACTICE AND PROCEDURE - Undefended List Procedure - Affidavit in support of notice of intention to defend - What it must contain

PRACTICE AND PROCEDURE - Undefended List Procedure - Leave to defend action thereunder - When will be granted

PRACTICE AND PROCEDURE - Undefended List Procedure - Party intending to defend action thereunder - How done

PRACTICE AND PROCEDURE - Undefended List Procedure - Purport of -  Scope of application of

PRACTICE AND PROCEDURE - Undefended List - Procedure thereunder Order 23 of Kano State High Court (Civil Procedure) Rules

PRACTICE AND PROCEDURE - Undefended List Procedure - Receiving better or further affidavit thereunder - Implication of WORDS AND PHRASES - ‘Defence on merit’ - Meaning of

Issues:

  1. Whether the affidavit in support of the writ of summons on the Undefended List, together with Exhibit KN1, were sufficient proof of the respondent’s claim at the lower court, regard being had to the fact that the basis upon which the claim for interest, charges, commission on turnover and other expenses were based were not stated in the affidavit.
  2. Whether the failure of the trial court to transfer the cause to the general cause list amounts to a denial of the appellant’s right of fair hearing.

Facts:

The appellant herein was a customer to the respondent, who carries on business of banking.  By an agreement between the two parties, a loan facility of One Million Naira was granted in June 1998 by the respondent to the appellant, subject to interest and other bank charges.  On the expiration of the facility, the appellant was unable to pay as agreed; the respondent, therefore, sued the appellant at the Kano State High Court under the undefended list procedure, for the sum of N1,342,949.81k, being the principal sum advanced with interest and other charges.

The appellant filed a notice of intention to defend and in it, he deposed that he had paid the sum of N435,100.00 further than the sum shown on the statement of account as the sum paid by him.  Consequent upon this, the respondent then applied to amend the sum originally claimed on the writ of summons to read N907,845.81k.  The appellant thereafter filed a further affidavit in support of his intention to defend, and asked the trial court to transfer the matter to the general cause list for proper determination of the issues of interests and other charges which the appellant denied, and sought to contest.  The trial High Court  ruled against the appellant and awarded judgment to the respondent.  Dissatisfied with the judgment, the appellant appealed to the Court of Appeal.