⦿ CASE SUMMARY OF:
Chief Peter Amadi Nwankwo & Anor v. Ecumenical Development Co-operative Society (EDCS) U.A (2007) – SC
by PipAr Chima
⦿ NOTABLE DICTA
* NATURE OF A GROUND OF APPEAL
Grounds of appeal are meant to attack findings of a court that have bearing on the case put up by a litigant. In other words, it should be related to a decision of the court and contain complaints an appellant rely on to succeed in setting aside a decision, the ratio decidendi of a judgment, not just observations and passing remarks of a Judge in the course of writing a judgment. – Mukhtar JSC. Nwankwo v. Ecumenical (2007)
* A JUDGE IS A HUMAN BEING
In the course of writing a judgment, a Judge analyses sequence of events as they recur and in the process makes some observations and comments. After all he is a human being who is bound by feelings and to express such feelings is not forbidden, as long as he is careful as not to be swayed by it. In other words, a Judge cannot be put in a straight jacket and expected to be so restricted without the liberty to put his thoughts into writing. – Mukhtar JSC. Nwankwo v. Ecumenical (2007)
* ISSUE MUST BE DISTILLED FROM GROUND OF APPEAL
The settled law is that an issue formulated for determination must be distilled from a ground of appeal, and where it has no ground of appeal to relate to, then it has no part to play in the determination of the appeal, and so the appellate court has no option than to disregard the said issue. Issue (1) in the appellant’s brief of argument also becomes incompetent and it is discountenanced.- Mukhtar JSC. Nwankwo v. Ecumenical (2007)
* WHAT IS A GROUND OF APPEAL?
It is settled law that a ground of appeal is basically a highlight of the error of law or fact or mixed law and fact made by the court in the decision sought to be set aside in the appeal. It is the sum total of the reason(s) why the decision on appeal is considered by learned counsel for the appellant to be wrong and liable to be set aside. It follows therefore that for a ground of appeal to be capable of achieving the purpose of setting aside the decision appealed against, it has to be very substantial and must relate to the ratio of the decision, not directed at the obiter dictum of the court or in the judgment. – Mukhtar JSC. Nwankwo v. Ecumenical (2007)
* CREDITOR CAN PROCEED AGAINST A GUARANTOR FOR DEBT GUARANTEED
I dealt with the meaning of a Guarantee and referred to the case of Trade Bank PIc v. Khalid Barakat Chami (2003) 13NWLR (Pt.836) 158 @ 216. I also referred to Fortune International Bank PIc v. Pegasus Trading Office (GmbH) and @ Ors. (supra) – Where it was stated by Uwaifo, JSC, that the tendency is that the law appears to have moved to the centre to make the right of the creditor less conditional. That the creditor is now entitled to proceed against the guarantor without or independent of the incident of the default of the principal debtor. I also referred to the observation of Ayoola, JSC, in the case of African Insurance Development Corporation v. Nigeria (LNG) Liquefied Natural Gas Ltd. (2000) 4 NWLR (Pt.653)494 @ 505-506; (2000)2 SCNJ, 119; (2000) 2 S.C. 57. I then stated that it is settled that the liability of a guarantor becomes due and mature immediately the debtor/borrower becomes unable to pay its/his outstanding debt. That the guarantor’s liability is then said to have crystallised. I referred to some other decided authorities in this regard and stated that a Surety or Guarantor, is bound by the written agreement it/he entered into. – Ogbuagu JSC. Nwankwo v. Ecumenical (2007)
Chief Peter Amadi Nwankwo & Anor
Ecumenical Development Co-operative Society (EDCS) U.A
⦿ LEAD JUDGEMENT DELIVERED BY:
A. M. Mukhtar, J.S.C
* FOR THE APPELLANT
– Chief Enechi Onyia, SAN, OON.
* FOR THE RESPONDENT
– Anthony George – Ikoli, Esq.
⦿ CASE HISTORY
The respondent who was the plaintiff in the High Court of Enugu State applied for issuance of a writ of summons under the undefended list, and the particulars of its claims against the defendants jointly and severally were as follows:- “(a) The sum of $500,000.00 (Five hundred thousand US Dollars) being the principal sum of the loan due from the first and second/defendants to the plaintiff under a personal guarantee executed by the defendants to secure a loan granted by the plaintiff to Amike Ezzangbo Community Farms Limited under a loan agreement dated 18th January, 1990 payment of which sum the first and second defendants have failed, refused and/or neglected to pay despite repeated demands. (b) Interest on the principal sum of $500,000.00 (Five Hundred Thousand US Dollars) at the agreed rate of 9% (nine percent) per annum from January 22, 1991 till date of judgment. (c) Interest thereafter at the rate of 6% (six percent) per annum from the date of judgment until the entire judgment sum is finally liquidated.”
The defendants filed a notice of intention to defend the suit under Order 24 rule 9(2) of the High Court (Civil Procedure) Rules of Anambra State (applicable to Enugu State), disclosing their grounds of defence in the supporting affidavit. The plaintiff filed a counter affidavit against the defendants’ notice of intention to defend.
The learned trial Judge after a careful consideration of the processes and documents before him refused the defendants’ application to transfer the suit to the general cause list, describing their defence as a sham. Unhappy about the decision, the defendants appealed to the Court of Appeal. The Court of Appeal dismissed the appeal, and the defendants again appealed to this court.
⦿ ISSUE(S) & RESOLUTION
[APPEAL: DISMISSED WITH N10,000 COST]
1. Whether in an undefended suit matter, the dismissal of a defendant’s notice of intention to defend the action against him and the subsequent entry of judgment for the plaintiff (without more) amounts to an infraction of that defendant’s rights to a fair hearing guaranteed under the Constitution?
i. The depositions in the Supporting affidavit of intention to defend and the annexures are so clearly not cogent enough to warrant the calling for counsel’s address on law and facts before judgment, as submitted by learned counsel for the appellants (not even on the issue of limitation). A careful perusal of the Supporting affidavit shows that it does not disclose that there are triable issues. Indeed, some of the documents exhibited support and lend credence to the case of the plaintiff. It is trite that unless a defendant in its Supporting affidavit of intention to defend a suit on the undefended list states a good defence and the particulars of such defence are adequately set out, and they are such that if proved would constitute such a defence, the court will not transfer the suit to the general cause list, and allow the defendant to defend the suit.
ii. In fact the documents exhibited by the appellants virtually nailed their coffins, so to speak. I fail to see that the appellants were denied fair hearing. With the above reproduced excerpt of the ruling of the High Court, one can see that the so called defence was adequately considered; and the decisions of the two lower courts were clearly borne out of law and facts placed before the courts, not morality or sentiments.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
⦿ REFERENCED (STATUTE)
Order 24 rules 9(2) and (4) of the High Court Rules of Anambra State, 1988, applicable to Enugu State, wherein the suit was initiated:
24(9)(2). If the party served with the writ of summons and affidavit delivers to the Registrar, not less than five days before the day fixed for hearing, a notice in writing that he intends to defend the suit, together with an affidavit setting out the grounds of his defence, and the court is satisfied that there is a triable issue, then and in such case the suit shall be entered in the general list and pleadings shall be filed.
(4) or where he delivered the notice and affidavit but the court is not satisfied there from that there is raised any bona fide issue for trial between the plaintiff and the said defendant, then and in such a case, the suit shall be heard as an undefended suit, and then judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
⦿ REFERENCED (CASE)
⦿ REFERENCED (OTHERS)
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