On 6th May, 1985, respondent signed judgment in respect of an undisputed indebtedness on a simple trial debt due to it from the applicant/appellant. Applicant did not apply for a stay of execution and did not give any notice of appeal against the judgment. A charge fixed and floating had been created over the assets of the applicant/appellant company in July, 1978 in favour of Savannah Bank of Nigeria Limited. As a result of applicant/appellant’s default Savannah Bank Ltd. Exercising its power under the debenture appointed a Receiver Manager over the Applicant/Appellant company with effect from the 27th June, 1985. This was more than six weeks after the Applicant/Appellant had submitted to judgment in an action against it for a simple debit. The writ of Fieri Facias was issued thereon on 7th May, 1985 judgment having been enrolled.

Satisfied, from the appellants' Notice of Intention to defend the suit, that a defence on the merits had been made out, the Court (hereinafter, simply, referred to as "the trial Court) transferred it to the General Cause List "for hearing and determination of the case on the affidavit evidence..."

At the hearing of the suit on August 5, 2003, PW1, Kelechi Ogbonna, presented the plaintiff's case. He was cross examined. The matter was, then, adjourned to November 3, 2003 for continuation of hearing. On that adjourned date, the appellants, though absent, wrote for an adjournment. Upon the trial Court's refusal of the application, it foreclosed the defence and adjourned for judgment on November 20, 2003.

Prior to the date aforesaid, the appellants, strenuously, sought to arrest the judgment through a motion filed on November 10, 2003. Having heard submissions on the application on November 20, 2003, the trial Court adjourned its ruling on it to December 5, 2003.

Sequel to its order of the dismissal of the application, it proceeded, on the same day, to dismiss the plaintiff/respondents case, holding that it could not prove interest on the sum of N10,000,000 (Ten million Naira) only although it, still, found that the first appellant collected and utilized the said sum on the basis of Banker/Customer relationship between the parties.

The plaintiff's appeal to the Court of Appeal, Benin Division, was successful. The Court (hereinafter, simply, referred to as "the Lower Court") set aside the judgment of the trial Court and entered judgment in favour of the plaintiff.

The lower Court, equally, faulted the trial Court's reason for refusing to accord probative value to the testimony of PW1 (the trial Court was of the view that, since the said witness was not in the employment of the plaintiff/Bank when the transaction was made and he was not the deponent to the accompanying affidavit, it would attach no weight to his evidence).

Aggrieved, the defendants/respondents (now, appellants) have appealed to this Court.